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Himco (India) (Private) Ltd. Vs. Maruf B.M. and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Application No. 105 of 1961
Judge
Reported in(1962)IILLJ687Bom
ActsIndustrial Disputes Act, 1947 - Sections 2 and 12(1); Employees' State Insurance Act, 1948 - Sections 4, 11, 12 and 73
AppellantHimco (India) (Private) Ltd.
RespondentMaruf B.M. and ors.
Excerpt:
.....of aggrieved workmen themselves and the subject-matter of dispute relates to them or any of them, they clearly have a direct interest in the dispute. he was satisfied that the union had the backing of substantial number of workmen to raise the dispute of the respondents and that cause of the respondents was espoused by the union on behalf of the workmen. 18. in fact the demands were made in the name of the union and the petitioners has failed to join the union as a party respondent. as there is dispute as to facts and as i am not disposed to record evidence in this matter, the above contention must fail. 11(1) as regards the authorities like court, labour court, tribunal, etc......to raise the dispute of the respondents and that cause of the respondents was espoused by the union on behalf of the workmen. he has specifically stated : 'i say that the substantial number of the workers of the petitioners are members of the said union and that each of the disputes raised on behalf of the respondents 2 to 8, respectively was espoused by the said union on behalf of the workmen.' 16. he has also relied upon the fact that the demands and representations are made not individually by any of the respondents 2 to 8, but each of the demands and representations had been made by an in the name of the union. 17. having regard to the above statements of facts mentioned by the respondent 1 (in this writ petition) it is not possible for me to come to the conclusion and make a.....
Judgment:

1. This is a petition under Art. 226 of the Constitution whereby the petitioners has, inter alia, applied for a writ of mandamus to restrain the respondent 1 being the conciliation office from proceedings further with conciliation proceedings further with conciliation proceedings in the matter of seven different demands made in respect of employment and services of respondents 2 to 8 separately be Engineering and General Employees' Union. The facts leading to this petition are as follows :

The respondent 2 was in the employment of the petitioner for nearly thirteen years. From 19 May to 2 June, 1960 he was under treatment of a panel doctor under the Employees' State Insurance Scheme. He had obtained two medical certificates from the doctor. The respondent's case is that he had reported for work with final certificate of fitness on 23 June, 1960. The respondent 2 was not allowed to resume work. In connexion with his right to be employed and reinstated in work, the Engineering and General Employees' Union, hereinafter referred to as 'the union,' made a representation and demand that he must be reinstated. The respondent 1 took this claim into conciliation proceedings and gave intimation in respect thereof to the petitioner being the employer.

2. Respondent 3 who has working as a driver with the petitioners from 22 November, 1957 was, after one year's work, transferred as supervisor in the factory with increment in salary. According to the respondent respondent 3 was an active trade union worker who, with the help of others, organized the employees of the the petitioner into a trade union. In January, 1960 he was chargesheeted, but upon his tendering explanation, no action was taken against him. The case of the union and the respondents is that the petitioner continuously made various efforts to persuade the respondent 3 to break the trade union and the respondent 3 did not agree to take such course. The respondent 3 was thereupon again transferred to his post of driver and again chargesheeted on 14 March, 1960 for an alleged offence of refusal to work as driver. By a letter dated 29 March, 1960 his services were terminated. By demand and representation made on his behalf the union challenged the dismissal and applied for reinstatement of the respondent 3 in service.

3. The respondent 4 had been in the employment of the petitioner for four years and fell sick from 31 May, 1960 to 13 June, 1960. He was under the treatment of a panel doctor. He was under the treatment of a panel doctor. He reported for work on 14 June, 1960 with a final certificate of fitness, but the petitioner refused to take him on work. According to the union, it was to permissible for the petitioner to terminate the employment of the respondent 4 having regard to the provisions in S. 73 of the Employees' State Insurance Act. In connexion with the termination as above of the service of the respondent 4, the union submitted a demand and representation and claimed reinstatement of the respondent 4.

4. The respondent 5 was an employee of the petitioner as supervisor at monthly salary. The respondent's case is that he was an active trade union worker and the petitioner had an eye on him to remove him for his trade union activities. He asked for eight days' leave to got to his native place at Indore to bring this wife and children. Leave was granted to him orally and thereupon he proceeded on leave from 23 November, 1959 and reported back for duty on 25 November, 1959, but he was then refused work by the petitioner. The union submitted representation and demand on his behalf that his services could not be terminated and that he must be re-employed and reinstated. The union's case was that it was practically impossible for a person to go to Indore and come back in a day. It was implicit in the representation that the services of the respondent 5 were sought to be terminated because he was active trade union workers and the petitioner anyhow wanted to terminate his services.

5. The respondent 6 had worked in the petitioner's factory for about six years on daily wages. The respondent's case is that the respondent 6 was also an active trade union worker and had taken a leading part in the formation of the union, and therefore, the petitioner had an eye on him for over a year and a half and was waiting for an opportunity to remove him from service. In April 1960 a charge was framed against him that he was loitering in the factory and not attending to work. With effect from 17 April, 1960 he was dismissed. The union made a representation and demand praying for his reinstatement. The union's case is that the charge was entirely false and the services of the respondent 6 were terminated because he was an active trade union worker and the petitioner anyhow wanted to terminate his services.

6. The respondent 7 had been in the employment of the petitioners as mazdoor for seven months. Without any notice he was stopped from attending to his work. No order for dismissal in writing was issued against him. A presentation was made by the union that his services could not be terminated and he must be reinstated in service.

7. The respondent 8 had joined the petitioners as an apprentice on a salary of Rs. 45 per month in 1953. In April 1960 his services were terminated without any notice and cause whatsoever. In connexion with the respondent 8, the union made a representation and demand that he must be reinstated and the termination was not bona fide.

8. As I have already mentioned, each of the aforesaid representations was made by the Engineering and General Employees' Union separately (in respect of different facts) as regards each of the respondent 2 to 8. Each of these demands was taken into conciliation proceedings by the respondent 1 (the conciliation officer) after preliminary inquiries and separate meetings in respect of each of the different demands of respondents 2 to 8 were held. In connexion with the demand made for reinstatement of the respondent 2, two preliminary meetings were held on 24 August, 1960 and 13 September, 1960. The demand was admitted in conciliation and further meetings were fixed for 29 September, 20 October, and 21 November and 30 November, 1960 and 3 and 7 January, 1961. In January 1961 for the first time the petitioner made a preliminary contention which was ultimately recorded in the petitioner's letter dated 13 January, 1961. The objection raised was that an 'individual dispute' had been raised by each of the demands and representations, that the individual dispute was not espoused by substantial workers of the class to which each of the respondents belonged and that accordingly no industrial dispute had arisen. The result as that the conciliation officer had no jurisdiction.

9. It is unnecessary to give details as to various meetings held in respect of others representations and demands referred to above. Suffice it to state that after preliminary meetings were held, each one of the above demands was admitted into conciliation proceedings. Thereafter several meetings were held before the conciliation office (the respondent 1) and in respect of each of the above representations preliminary objection as above stated was raised in January 1961. By a single letter dated 13 January, 1961 addressed to the respondent 1 the above objection was raised on behalf of the petitioner. The contention made was that an individual dispute remains an individual dispute till it is espoused by substantial workers of the class two which the aggrieved employee belonged. The representations did not relate to industrial disputes and the respondent 1 therefore should not proceed.

10. The respondent 1 intimated to the petitioner that the conciliation proceedings were proper and requested it to attend (sic) the respondent 1 with written statements in respect of the representations and demands made on behalf of respondent 2 to 8. In that connexion the petitioners, by its letter dated 4 March, 1961, informed the respondent 1 that he had no disclosed the type of inquiries that he had made to ascertain as to whether the disputes raised were industrial disputes and that the inquiries that he had made were made without any information and behind the back of the petitioners. The petitioner called upon the respondent 1 to disclose the type of inquires made. After making the above complaint, the petitioner field this petition on 27 March, 1961, and on 8 April, 1961, obtained rule in terms of prayers (a), (b) and (c) and an order of injunction preventing the respondent from proceedings with the conciliation proceedings.

11. The petitioner's contention in connexion with the conciliation proceedings in respect of the seven representations and demands which I have mentioned above is that the disputes raised on behalf of the respondent 2 to 8 are individual disputes and not industrial disputes. According to the petitioners, where is no proof disclosed by the respondents to show that the demand made on behalf of the each of the respondents 2 to 8 has been sponsored and espoused by substantial section of the workers employed by the petitioners. According to the petitioners, the other workmen are not interested in the said dispute. The petitioner's submission based on the above allegations is that under the provisions of the Industrial dispute cannot be taken into conciliation proceedings and that the respondent 1 had assumed jurisdiction and taken the demands made on behalf of respondents 2 to 8 into conciliation proceedings wrongfully.

12. In this connexion, Mr. Jayasinghani for the petitioner had relied upon the definition of 'industrial dispute' as contained in S. 2(k) of the Industrial Disputes Act and also S. 12(1) of the Act. He has also relied upon the decision of the Supreme Court in the cases of Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate [1958 - I L.L.J. 500 at 523]. In this connexion. I must at once mention that the is no dispute between the parties in the case that under the provisions of the Act individuals disputes cannot be taken into conciliation proceedings. A conciliation office can taken only industrial disputes into conciliation proceedings. The respondents rely upon the above-stated decision of the Supreme Court in proof of the fact that in fact all the demands and representations made on behalf of the respondent 2 to 8 relate to industrial disputes and not to individual disputes. According to the respondents, these demands and representations relate to industrial disputes because the demands are espoused by other workmen of the class of which was of the respondents 2 to 8 belong. Having regard to that fact, according to the respondents, it is not permissible for me or for the respondent 1 to make a finding that these are individual disputes.

13. Reliance in that connexion is placed by both parties on the observations of the Supreme Court in the above case. The relevant observations run as follows :

'Ordinarily, it is only the aggrieved party who can raise a dispute, but an industrial dispute is put on a collective basis, because it is now settled that an individual dispute, not espoused by others of the class to which the aggrieved party may belong, is not an industrial dispute within the meaning of S. 2(k).'

14. After making the above observations, the Supreme Court refer to observations of Isaccs, J., in the Australian case of George Hudson, Ltd. v. Australian Timber Workers' Union [32 C.L.R. 413 at 441]. The relevant part of the observations of Isaacs, J., relied upon on behalf the respondents runs as follows :

'In a case where the party to the dispute is composed of aggrieved workmen themselves and the subject-matter of dispute relates to them or any of them, they clearly have a direct interest in the dispute. Where, however, the party to the dispute, also composed of workmen, espouse the cause of another person whose employment, or non-employment, etc., may pre-judicially affect their interest, the workmen have a substantial interest in the subject-matter of dispute. In both such cases, the dispute is an industrial dispute.'

15. Having regard to the above observations, the question which arises for determination in this petition is not a mere question of law; but a question of fact. The fact in issue between the parties is as to whether the other workmen working with/and/or in the employment of the petitioners are espousing the demand and representations made separately in respect of employment and/or dismissal of the each of the respondents 2 to 8. In other words, the question is whether the question of dismissed and/or termination of service of respondents 2 to 8 is one which pre-judicially affects the interest of the to her workmen and for that reason they are espousing the cause of these respondents as made in the representations and demands made on behalf. In regard to this question of fact, in his affidavit in reply the respondent 1 had made reference to the contents of the representations made on behalf of each of the respondents 2 to 8. He has pointed out in connexion with respondents, 3, 5 and 6 that in the representations it is contended that these respondents were active trade union workers who had with the help of other workers organized the employees of the petitioners into a trade union. The contention in the representations is that effort were being made by the employment of the respondents. He has referred to these facts obviously in support of the argument that according to the workmen and/or employees of the petitioner, the termination of service of these respondents is prejudicial to the interest of all the other workmen of petitioner. As regard some of the others respondents, he has pointed out that in the representations the fact of the production of medical certificates by these respondents to the petitioner in connexion with their absence from work are relied upon. The reference to the certificate is made because it is suggested on behalf of the workmen that the certificate granted by a panel doctor under the Employees' State Insurance Scheme must be conclusive and binding on the petitioners and that by reasons of the provisions of S. 73 of that Act it is not permissible for an employer to terminate service of workmen after requisite medical certificate is produced. That all is a question in the decision whereof all the workmen are interested. If in spite of production of such certificate an employee's services are allowed to be terminated, according to the workmen, their interests would be prejudiced. It is for that reason suggested that the other workmen are espousing the demands on behalf of the respondent whose services have been terminated in spite of the production of the certificate of panel doctors. In connexion with this question of fact, upon inquiries he has ascertained that the union is a registered trade union, that the disputes are sponsored by the union, that the union is a registered trade union, that the disputes are sponsored by union, that he had himself examined the records of the union and found that majority of the workers of the petitioner were members of the union which had been espousing and sponsoring the cause of respondents 2 to 8. He has also mentioned that after receiving the letter of the petitioners dated 13 January, 1960 he re-examined the record of the union. He was satisfied that the union had the backing of substantial number of workmen to raise the dispute of the respondents and that cause of the respondents was espoused by the union on behalf of the workmen. He has specifically stated :

'I say that the substantial number of the workers of the petitioners are members of the said union and that each of the disputes raised on behalf of the respondents 2 to 8, respectively was espoused by the said union on behalf of the workmen.'

16. He has also relied upon the fact that the demands and representations are made not individually by any of the respondents 2 to 8, but each of the demands and representations had been made by an in the name of the union.

17. Having regard to the above statements of facts mentioned by the respondent 1 (in this writ petition) it is not possible for me to come to the conclusion and make a finding of fact that the workmen of the petitioner are not espousing and supporting the demands and/or representations made on behalf of the respondents 2 to 8. It is true that in respect of the demand and/or representation made on behalf of one or the other of the respondents the demands may be such as in no manner pre-judicially affect the interest of the other workmen. That is, however, not true in respect of the demands made on behalf of all the respondents 2 to 8. It is obvious that termination or services of the respondents who were active trade union workers and with those help the employees of the petitioners organized as trade union must prejudice the interests of the workers. The workers may be in need of such organizers. It is also obvious that the question as to whether, having regard to the provisions of S. 73 of the Employees' State Insurance Act, 1958, the certificate of a panel doctor under the Employees' State Insurance Scheme must be binding on an employer, is a question in which all the workmen are interested. The termination of services of any of the workmen in spite of production of such certificates may be a cause in which the other workmen are interested. The demand made for reinstatement of the respondents whose services have been terminated in spite of production of such medical certificates is a demand which can be espoused by other workmen and may be held to an industrial dispute.

18. In fact the demands were made in the name of the union and the petitioners has failed to join the union as a party respondent. On that ground alone the petition is liable to be dismissed. The petitioner joined in this petition respondents and the representations made demands made on their behalf fare all different. It appears to me that it was not permissible for the petitioner to join in one petition respondents 2 to 8 and claim a relief as he has done in these proceedings. The petitioner is guilty of misjoinder of respondents in this petition.

19. As I have already mentioned, it is not possible to make a finding of fact as must be made in favour of the petitioner so that he can succeed. As there is dispute as to facts and as I am not disposed to record evidence in this matter, the above contention must fail.

20. It is contended in the petition that the respondent 1 decided the question of jurisdiction raised by the petitioner in its letter dated 13 January without affording a hearing to the petitioner. The petitioner's a case is that the fact on the basis whereof the respondent 1 assumed jurisdiction were gathered in the absence of the petitioner. The petitioner's contention is that the respondent 1 is a quasi-judicial tribunal and the petitioner was entitled to hearing and to be present when the information and facts were gathered by the respondent 1.

21. In this connexion, it is relevant to bear in mind that under the scheme of Ss. 4, 11 and 12 of the Act is the duty of a conciliation officer to medicate in and promote the settlement of industrial dispute. The conciliation office has to hold inquiry into any existing or apprehended industrial dispute. The conciliation office has to investigate without delay the dispute and all matters affecting the merit and the right settlement thereof. If no settlement is arrived at, the conciliation office is bound to send to the Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of facts and circumstances and the reason on account of which a settlement could not be arrived at. It is significant that in S. 11(1) as regards the authorities like court, labour court, tribunal, etc., it is provided that the procedure to be followed is as the arbitrator or authority concerned may think fit. There is not particular provision made as regard the procedure to be followed by a conciliation officer. In fact a conciliation office is not invested with a duty to decide any dispute at all. The ultimate result of the intervention of a conciliation office is to be contained in a report to be made by his, to the Government. The report is not a decision binding on any parties. Obviously, a conciliation officer does not deal with any list between the parties before him so as to adjudicate upon and decide the same. A conciliation officer is therefore not a quasi-judicial tribunal. In the matter of the question as to whether he had jurisdiction of not, prima facie, he is entitled to make his own inquiries about the facts from the parties concerned. It is not necessary that he must disclose all information gathered to the disputing parties. It is not absolutely necessary that a conciliation officer should in that connexion gathered information in the presence of disputing parties. In may view, the grievance made on behalf of the petitioner that the respondent 1 was guilty of violation of principles of natural justice is misconceived. The petitioner is to entitled to any relief on that ground.

22. The respondents have also contended that the petitioner has not made any demand for justice. The letter, dated 4 March, 1961, does not appeal to me to be a demand for justice at all. The petitioner was not entitled to file this petition before making appropriate application and demand for justice.

23. The petition is, under the circumstances, dismissed with costs. Rule discharged.


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