S.S. Dhavan, J.
1. This is a petition under Article 226 of the Constitution filed by 29 firms which are carrying on the business of manufacture of glassware in Firozabad district, Agra. Their main business is to manufacture bangles made of glass. The petition is directed against the legality of an order of the Labour Commissioner of Uttar Pradesh dated 13 December 1957 referring a dispute between the firms and their workmen to the industrial tribunal, Allahabad, for adjudication. The order of reference runs thus:
Whereas I am of opinion that an industrial dispute in respect of the matter hereinafter specified exists between the employers and the workmen of the concerns as mentioned in. the schedule;
Now, therefore, in exercise of the powers conferred by Section 4K of the industrial Disputes Act, 1917 (Uttar Pradesh Act XXVIII of 1947), delegated to me under notification No. 2723 (ST)/XXXVI-A/50 (ST)/1957, dated 20 May 1957, I hereby rarer the said dispute to the industrial tribunal (general) at Allahabad, constituted by G.O. No. U-179 (ST)(i)/XXXVI-A dated 30 April 1957, for adjudication on the following issues:
Matter of dispute
Should the employers mentioned in the schedule be required to revise the wages of their workmen of various categories mentioned in the annexure; if so, with what details?
Dy. Labour Commissioner
(Industrial Relations), U. P.
2. Before the tribunal could hear the dispute, the petitioners came to this Court and challenged the legality of the reference itself. Two points have been urged before me. First, is contended that no reference could have been made with regard to firms which had closed down their factories before the alleged dispute between the employers and their workmen arose. Secondly, a single reference covering the disputes in several factories is incompetent.
3. The petitioners pray for a writ of prohibition directing the Industrial tribunal not to proceed with the bearing of the dispute. The petition is opposed by the State and a counter affidavit has been filed, it is denied that any of the firms closed down their factories before the dispute arose, and alternatively, it is submitted that even if there was a closure of some factories, this is a matter which should be taken up before the industrial tribunal itself. The State further contends that a single reference covering an identical dispute in several factories is quite valid.
4. On the first point, the petitioners have alleged that four firms had closed down their business and had not been carrying on any manufacturing operations before the dispute arose. These are Vaish Glass Works, Firozabad (petitioner 12), Hodariya Glass Works, Firozabad (petitioner 28) and Shanker Glass Works, Firozabad (petitioner 29). It is alleged that they were closed for more than a year--Shanker Glass Works for more than five years and Sant Glass Works for more than three years--before the dispute arose. It is admitted by the petitioners that the firms were not dissolved but reliance is placed on certain combination agreements between various factories in Firozabad. This combination scheme is explained in the rejoinder affidavit of the petitioners sworn by their pairokar Dharmendra Dutt Paliwal. According to him, it means that the supply of quota of raw materials granted to each individual factory is obtained by it under its own permit. But several factories enter into agreement under which only one of them la permitted to remain open while the others are closed. The closed factories sell the raw material obtained by them under their individual quotas to the factory which is permitted to remain open under the combination Agreement. They have no concern with the expenses, profits or losses of the factory which remains open and merely sell their quota of raw materials to it at a profit. Under this arrangement, the closed factories become the sellers of raw materials to the factory which remains open and cease to carry on the business of manufacturing glassware. It is contended that their status is no different from that of any of other seller of raw material except that they are bound to Bell the material to the open factory under the agreement. The reason for this sort of combination agreement is explained by the petitioners. They Bay that there is no enough demand for bangles in the market and the combination arrangements are in the nature of a pool to avoid uneconomic competition. The petitioner's contention is that the agreement had three vital results: first, the factories of all members of the particular unit except one closed down and secondly, the firms owning the closed factories ceased to employ any workmen of their own, and thirdly, they had no concern with the conditions or terms of employment of the workmen in the factory which remained open. The petitioners alleged that the factories closed down before the dispute between the workmen and the employers in the industries arose and thus there was no dispute between non-existent employer and equally non-existent workmen. The reference is, therefore, on the face of it incompetent in so far as it relates to the four petitioners mentioned above.
5. Before I consider this contention on merits it is necessary to state facts which are common grounds between the parties. It is conceded by the counsel for the petitioners that not all the petitioners closed down their factories before the dispute arose but only the four mentioned above. On the other hand it was conceded by the learned Counsel for the State that in view of the decision of the Supreme Court in Pipraich Sugar Mills, Ltd. v. Pipraich Sugar Mills Mazdoor Union 1957 I L.L.J. 235 no dispute can arise between an employer and his workmen after the business of the employer has closed down. But it is contended by the State that the dispute arose before any of the petitioners had closed their factories and the petitioners cannot avoid adjudication simply because their factories were not working after the dispute had arisen. The State has also denied the contention of the petitioners that a combination agreement of the type set up by the petitioners amounts in fact or law to a closure of business which would prevent adjudication of any dispute between the factory and its workmen. It was also argued that this Court cannot decide a disputed question of fact, namely, whether any particular firm had closed down its business before the dispute. It is for the petitioner concerned to raise this matter before the Industrial tribunal which will be decided on evidence.
6. On the other hand, it is contended on behalf of the petitioners that if the Labour Commissioner made a reference with the full knowledge that some of the firms had closed down their business, the reference will be presumed to have been made by the State on the basis that a dispute can arise and be referred for adjudication even after the closure of a business. In that case the very basis of the reference is illegal.
7. The first question before me is whether the four petitioner firms have established their case that they had closed their business before a dispute arose. After perusing the affidavits exchanged between the parties, I have come to the conclusion that the evidence adduced by the petitioners is unreliable. For example, it is alleged by the petitioners in Para. 3 of their affidavit that Hodariya Glass Works, Firozabad, has been closed for more than a year and had not been carrying on any manufacturing operations. It is further alleged that the business of Shanker Glass Works had similarly closed down for more than five yeara and of Sant Glass Works for more than three years. The affidavit was sworn on 12 January 1958 and yet in the next paragraph it is also alleged that the workmen of all the petitioner firms except eight, went on a lightning strike on 4 June 1956. One of the firms whose workmen are alleged to have gone on strike on this date is Sant Glass Works. It is difficult to see how the workers of a factory which is already closed can go on a lightning strike. A strike is possible only if there are workmen who are working in the factory and withhold their labour from the employer. It is therefore, clear that the allegation that Sant Glass Works had closed down before the dispute arose, is not correct, and is falsified by the petitioner's own affidavit. It is contended on behalf of the State, not without some force, that it would be unsafe for this Court to rely on the petitioner's allgations even with regard to the alleged closing down of the factories belonging to the other three petitioners. The petitioners have not revealed the dates of the various combination agreements under which they closed down their factories. Learned Counsel for the petitioner was unable to reveal the dates of these combination agreements in spite of repeated questions by the Court. If the petitioners had mentioned the dates of these agreements, it would have been possible to know the precise dates on which the factories belonging to the petitioners are alleged to have closed down. On the material placed before the Court, it is not possible to hold that the four petitioners mentioned above closed down their business before the dispute arose.
8. Consequently, I am unable to hold that there is a patent lack of Jurisdiction revealed in the order of reference. The Labour Commissioner has merely stated that he was of the opinion that an industrial dispute existed between the employers and their workmen. There is considerable force in the argument of the learned Counsel for the State that the Labour Commissioner must have formed his opinion on the basis of a report made by the conciliation officer, for it is common ground that there were conciliation proceedings before that officer which failed. The petitioner firms must have placed their viewpoint before the conciliation officer which he presumably forwarded to the Government. If on his report the Labour Commissioner decided that an Industrial dispute existed between the petitioner firms and their workmen, he was within his power to do so. The order of reference does not reveal any lack of jurisdiction on the face of it. The position would have been different if the Labour Commissioner had observed in his order that he was making a reference even though the dispute arose after some of the petitioner firms had closed down their business. In that case, the very basis of the reference would be illegal, but in the absence of any evidence to the contrary it must be presumed that the reference relates to a dispute between an existing employer and its workmen.
9. It is for the petitioner firms, who claim to have closed down their business before the dispute arose, to raise this point before the industrial tribunal and lead evidence in support of it. In my opinion, the tribunal has jurisdiction to decide this question just as it has jurisdiction to determine whether the dispute is an Industrial dispute or a particular employee Is a workman or not.
10. In view of this finding, it is not necessary for me to decide this question whether the alleged illegal parts of the reference are severable from the legal parts. Prima facie the entire reference appears to be legal and it is for the petitioners, or some of them, to prove the contrary by evidence before the industrial tribunal.
11. It was also contended that a single order referring disputes between several employers and their respective workmen is illegal. I cannot agree. The argument is negatived by the scheme of the Act. Section 2(f) provides that the word 'employer' includes an association or a group of employers. Thus a combination of several employers in a common industrial dispute is envisaged by this definition. Again Section 5 provides that where an industrial dispute has arisen in one undertaking or a group of undertakings, the State may include in the adjudication proceedings any other undertaking whether an industrial dispute exists at the time in that undertaking or not. Thus this section contemplates a reference Involving a group of undertakings in the adjudication proceedings. Section 2(i) defines 'industrial dispute' as any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen. This definition contemplates a dispute between several employers on the one hand and their workmen on the other. Reading these provisions together, it is clear that a single reference may include several employers. In my view, the question whether a single reference should include several disputes between different employers and their workmen depends upon the nature of the dispute. If it is of a transcendent nature affecting all the employers and the workmen in a particular industry, it is capable of being decided by a single reference. In fact it would be advantageous both to the employers and their workmen that there should not be multiplicity of proceedings but that all the common questions arising in that particular Industry should be decided by one adjudication. The nature of the dispute should be the guiding principle in this matter. In the present case, the dispute arose from a demand by the workmen in a glass industry in Firozabad for the. revision of their scale of wage. It was desirable that a dispute of this nature, which affected the entire industry in Firozabad, should be decided by a single reference and not piecemeal. The same view was taken by the Madras High Court in Raju's Cafe, Coimbatore, and Ors. v. Industrial Tribunal, Coimbatore 1951 I L.L.J. 219 and by the Punjab High Court in D'lite Cinema and Ors. v. Rameshwar Dayal .
12. No other point was urged before me. The petition falls and is rejected with costs.