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Suryaprakasa Rao (A.) Vs. Labour Court, Andhra Pradesh and Two ors. - Court Judgment

LegalCrystal Citation
SubjectService;Labour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. No. 1186 of 1957
Reported in(1959)ILLJ241AP
ActsUttar Pradesh Industrial Disputes Act, 1947; Constitution of India - Article 226; Industrial Disputes Act, 1947 - Sections 2, 7, 10 and 10(1)
AppellantSuryaprakasa Rao (A.)
RespondentLabour Court, Andhra Pradesh and Two ors.
DispositionWrit petition allowed
Excerpt:
service - individual dispute - uttar pradesh industrial disputes act, 1947, article 226 of constitution of india and sections 2, 7, 10 and 10 (1) of industrial disputes act,1947 - driver of bus denied to come on service after some disputes with employer and dismissed - case referred to labour court considering industrial dispute - individual dispute can not be entertained by labour court - section 2 (k) of act contemplates right of workmen as class - held, order of tribunal liable to set aside as dispute not industrial dispute. - - 926 and bad rendered service earnestly, obediently and dutifully; 2(k) of the industrial disputes act, and that in the circumstances of the case, he was well within his rights in terminating the services of the driver. the preponderance of judicial opinion..........or order to quash the award of the labour court, andhra pradesh, guntur, dated 9 november, 1957 in industrial dispute no. 6 of 1957 as notified in g.o. ms. no. 1212, s.w. & l., dated 20 november 1957, and published in the andhra pradesh gazette, dated 28 november 1957. the government of andhra pradesh by g.o. ms. no. 856, s. w. & l., dated 22 august 1957, referred to the labour court for adjudication under s. 10(1)(c) of the industrial disputes act, 1947, the dispute between a. suryaprakasa rao (the petitioner herein), owner of bus no, a.d.k. 926 of vijayawada, and bus-driver s. subba rao (the respondent 3 in this writ petition), represented by the city bus workers' union, vijayawada. the dispute as shown in the annexure to the above government order was :(1) 'whether the termination of.....
Judgment:

1. This is a petition under Art. 226 of the Constitution for the issue of a writ of certiorari or any other appropriate writ, direction or order to quash the award of the labour Court, Andhra Pradesh, Guntur, dated 9 November, 1957 in industrial dispute No. 6 of 1957 as notified in G.O. Ms. No. 1212, S.W. & L., dated 20 November 1957, and published in the Andhra Pradesh Gazette, dated 28 November 1957. The Government of Andhra Pradesh by G.O. Ms. No. 856, S. W. & L., dated 22 August 1957, referred to the labour Court for adjudication under S. 10(1)(c) of the Industrial Disputes Act, 1947, the dispute between A. Suryaprakasa Rao (the petitioner herein), owner of bus No, A.D.K. 926 of Vijayawada, and bus-driver S. Subba Rao (the respondent 3 in this writ petition), represented by the City Bus Workers' Union, Vijayawada. The dispute as shown in the annexure to the above Government Order was :

(1) 'Whether the termination of the services of S. Subbarao is justified ?

(2) If not, to what relief is he entitled ?'

2. In the statement of claim filed on behalf of the driver, it was alleged that he had put in a service of six years on bus No. A.D.K. 926 and bad rendered service earnestly, obediently and dutifully; but as he is a member of the City Bus Workers' Union and an ardent trade unionist participating in the activities of the union, the operator of the bus had spitefully been trying to remove him from service and was imposing extra duties on him.

3. It was further stated that on 9 February 1957, when, owing to ill-health, the driver could not go on extra duty, the operator discharged him from service on 17 February 1957, and that during the negotiations which followed, although the operator promised to take back the driver, he did not do so and instead gave a notice stating that the driver himself had stopped away from work. Therefore the matter was reported through the City Bus Workers' Union to the labour officer. The employer, on the other hand, in his counter averred inter alia that there was no industrial dispute as defined in S. 2(k) of the Industrial Disputes Act, and that in the circumstances of the case, he was well within his rights in terminating the services of the driver. His case was that on 17 February 1957 the driver had voluntarily relinquished his service and in spite of a letter sent to him on 21 February 1957 to come and join duty and give his explanation for the sudden absence, the driver did not do so; and therefore his services were terminated on 23 February 1957, and the money due to him up to that date (Rs. 10-4-0) was sent by money order; that even during the period from 17 February 1957 to 23 February 1957, the driver was in service elsewhere and thus by his conduct, he had ceased to be a workman under the operator that this was only an attempt on the part of the union to harass the operator and that the action taken by the employer was a pure and simple case of exercising his own right as an employer against the defaulting employee, and the employee was not entitled to reinstatement or to claim any compensation.

4. On those pleadings, the labour Court set down the following points for determination :-

(1) whether the driver S. Subba Rao was dismissed from service or had voluntarily stopped away;

(2) whether the termination of the service B of S. Subba Rao is justified ?; and

(3) to what relief is the driver entitled It will be observed that although the question whether the dispute was an industrial dispute within the meaning of S. 2(k) of the Industrial Disputes Act, had been specifically raised in the counter filed by the petitioner, the labour Court did not go into that question and give a finding thereon.

5. On all the points framed for determination, the labour Court found against the petitioner. It found that the driver had not voluntarily stopped away from work but that his services had been terminated by the operator; that the termination of the services of the driver was not justified and therefore the driver was entitled to be reinstated and to be paid compensation at the rate of Rs. 85 per mensem from 17 February 1957 to the date of the Court's order, i.e., 9 November 1957, and that the same rate from the date of the Court's order till the date of reinstatement; and the award was passed on those terms. The award was published by the State Government in the Andhra Pradesh Gazette on 28 November 1957.

6. It is contended on behalf of the petitioner that the award of the labour Court is vitiated by a wrongful exercise of jurisdiction inasmuch as the dispute referred to it by the State Government was not an industrial dispute within the meaning of S. 2(k) of the Industrial Disputes Act; on the contrary, it was an individual dispute between a single workman and the employer and did not involve any dispute between a group of workmen and the employer so as to make it an industrial dispute. In the absence of an industrial dispute, the labour Court had no jurisdiction to entertain and adjudicate the matter in spite of the reference made to it by the State Government under S. 10(1)(c) of the Act.

7. It is urged on behalf of the petitioner that notwithstanding the reference made by the State Government, he was entitled to show to the labour Court that what was referred was not in truth an industrial dispute and, therefore, the labour Court had no jurisdiction to make an award; and that the labour Court had erred in not deciding the jurisdictional issue before proceeding to adjudicate on the merits of the dispute. Thus, it is submitted the labour Court had assumed a jurisdiction which it did not have, and therefore, the award passed by it is invalid and is liable to be quashed.

8. There is considerable force in this contention.

9. In Central Provinces Transport Service, Ltd. v. Raghunath Gopal Patwardhan [1957 - I L.L.J. 27], their lordships of the Supreme Court examined the meaning and scope of the expression' 'industrial dispute' and stated the position as follows :-

'The question whether a dispute by an individual workman would be an industrial dispute as defined in S.2(k) of the Act No. 14 of 1947, has evoked considerable conflict of opinion both in the High Courts and in industrial tribunals and three different views have been expressed thereon :

(1) A dispute which concerns only the rights of individual workers, cannot be held to be an industrial dispute.

(2) A dispute between an employer and a single employee can be an industrial dispute as defined in S. 2(k).

(3) A dispute between an employer and a single employee cannot per se be an industrial dispute, but it may become one if it is taken up by the union or a number of workmen.

The preponderance of judicial opinion is clearly in favour of the last of the three views stated above, and there is considerable reason behind it. Notwithstanding that the language of S. 2(k) is wide enough to cover a dispute between an employer and a single employee, the scheme of the Industrial Disputes Act does appear to contemplate that the machinery provided therein should be set in motion, to settle only disputes which involve the rights of workmen as a class and that a dispute touching the Individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the union or a number of workmen.'

10. The same view with regard to the distinction between an industrial dispute and an individual dispute was reiterated by the Supreme Court in Newspapers Ltd. v. State Industrial Tribunal, U.P. [1957 - II L.L.J. 1], and their lordships further pointed out at p. 8 :-

'In spite of the fact that the making of a reference by the Government under the Industrial Disputes Act is the exercise of its administrative Powers, that is not destructive of the rights of an aggrieved party to show that what was referred was not an 'Industrial dispute' at all and therefore the jurisdiction of the industrial tribunal to make the award can be questioned, even though the factual existence of a dispute may not be subject to a party's challenge.'

11. In the present case, the question was raised before the labour Court as to whether the dispute referred to it was an industrial dispute within the meaning of S.2(k) of the Industrial Disputes Act, but the labour Court did not address itself to that question, but proceeded on the assumption that it was an industrial dispute. In doing so, it gave itself a jurisdiction without determining in the first instance whether the state of facts existed which alone would give it jurisdiction to proceed with the matter. The labour Court had first to decide whether there was an industrial dispute and that decision was a condition precedent to the assumption of jurisdiction by it to decide the dispute referred to it by the State Government. Despite the fact that the point was raised before the labour Court, it has not enquired into it. Whether a particular dispute is an industrial dispute or is only an individual dispute, is a question which can be 0decided only on evidence which the parties may wish to adduce. The fact that the State Government had made a reference to the labour Court, does not by itself give the Court jurisdiction to decide the matter, if in fact what was referred to it was not an industrial dispute. In this context, the observations of Sinha, J., in Bengal Club Ltd. v. Santi Ranjan Somaddar [1957 - I L.L.J. 505] are very pertinent. At pp. 511-512, the learned Judge observes as follows :

'Under S. 7 of the Industrial Disputes Act, the Government may constitute an industrial tribunal for the adjudication of industrial disputes. It cannot constitute a tribunal for any other purpose, nor can the tribunal so constituted try any dispute other than an industrial dispute. It is true that in a given case the tribunal gets Seisin of the matter by virtue of an order of reference made by the Government under S. 10 of the Act. But it must not be forgotten that S. 10 is also limited in scope. Under S. 10, the Government can only make a reference if in its opinion any industrial dispute exists or is apprehended. If no industrial dispute exists or is apprehended, Government has no power to refer to the tribunal and the tribunal has no power to adjudicate upon the alleged dispute so referred. In other words, It is for Government to form an opinion as to whether an industrial dispute exists or is apprehended, But what is an industrial dispute is an objective fact, and Government cannot turn a dispute which is not an industrial dispute into an industrial dispute by merely making an order of reference. Nor does the tribunal derive jurisdiction merely by the fact that there to a reference. The condition precedent must be satisfied, namely, that it must relate to an industrial dispute which, in the opinion of the Government, exists or is apprehended. If the dispute itself is not and cannot be an industrial dispute, the Government cannot act under S. 10 and the tribunal cannot adjudicate upon it. The tribunal has the power to examine its own jurisdiction in a particular case : State of Madras v. C. Parthasarathy [1953 - I L.L.J. 174]. Where the point is raised, it is its duty to do so before entering into the reference.'

12. In this case, the point was raised but was not gone into by the labour Court, and without doing so, it proceeded to assume jurisdiction to deal with the reference made by the Government. It follows that the award passed by the labour Court is one made without jurisdiction and is liable to be quashed. The writ petition is accordingly allowed. The award of the labour Court, Andhra Pradesh, Guntur, dated 9 November 1957, in industrial dispute No. 6 of 1957, as notified in G.O.Ms. No. 1212, S.W. & L., dated 20 November 1957, and published in Andhra Pradesh Gazette, dated 28 November 1957, is quashed, and a direction will issue to the labour Court to restore industrial dispute No. 6 of 1957 to its file and to decide, as a preliminary issue, the jurisdictional fact whether or not the dispute in question is an industrial dispute within the meaning of S.2(k) of the Industrial Disputes Act, and then deal with the matter according to law. There will be no order as to costs in this writ petition.


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