K.L. Gosain, J.
1. The Labour Department of the Punjab Government by its notification No. 1579-C-Lab. 57/1774, dated 1st February, 1957, referred to the Industrial Tribunal, Punjab, Jullundur, for adjudication an alleged dispute between Messrs Associated Cement Companies Limited, Bhupendra Cement Works, Surajpur, and its workers. The dispute referred to in the notification was as follows :--
'Whether the dismissal of the following workmen is justified and if not whether they should be reinstated and compensated for the period of unemployment:--
(1) Mehnga Bam, Bar Bender.
(2) Janak Raj Soni, Store-clerk.
(3) Vishwa Nath Bali, Painter.
(4) Daulat Singh, Motor-driver.
(5) Malik Ram Khanna, Turner.'
2. On 20th February, 1957 the aforesaid Company presented an application raising certain preliminary objections to the aforesaid reference. The objections mainly were : (1) that the workmen in question did not fall within the definition of the term as given in the Act and as a consequence thereof it could not be said that any industrial dispute had arisen, (2) that the dispute in question could not be termed as an 'industrial dispute' as it was a dispute only between the individual workers and the Company and not between the union of workers and the Company, (3) that the employees in question had been discharged after obtaining requisite permission from the Labour Appellate Tribunal and although the Lucknow Bench of the Allahabad High Court had quashed the said order of the Labour Appellate Tribunal, the matter was still sub judice in the Supreme Court and the appeal of the Company on the point had been duly admitted by the Supreme Court.
It appears that the Industrial Tribunal did not decide the preliminary objections as it was found necessary to record evidence of the parties before deciding them. The parties put in their respective claims and statements before the Industrial Tribunal and on the 6th April, 1957 issues were framed by the Tribunal. The case was adjourned to 6th June, 1957 for recording of the evidence of the Company, but on that date the management requested for an adjournment on the ground that their attorney Shri Ranga Rao had fallen ill.
The case was consequently adjourned to 17th July, 1957, but could not be taken up on that date as the Presiding Officer was on leave. It was adjourned to 17th August, 1957, but the management on that date also prayed for adjournment on the ground that their chief witness Mr. Mohan was ill. The case was adjourned to 13th September, 1957, but on that date again the attorney of the Company stated that he had not brought the evidence and submitted that the Tribunal should first decide the point of jurisdiction.
The Tribunal did not agree to the adjournment and the Company produced one witness Shri A. R. Mohan and then closed their case. The case was adjourned to 30th September, 1957 for the evidence of the workmen and it appears that an application was then made by the Company that the preliminary objections should first be decided. The Tribunal passed an order on 13th September, 1957 that it was not desirable to pass piece-meal orders and he would decide the whole case by one award.
The petitioners, Messrs Associated Cement Companies Limited, Bhupendra Cement Works, Surajpur, filed the present petition on 24th September, 1857 under Article 226 of the Constitution of India praying for the issuance of a number of directions, orders and writs detailed in paragraph No. 22 of their petition. They impleaded the Industrial Tribunal, Punjab, Shri Avtar Narain Gujral, the State of Punjab, and the five employees as respondents. Detailed written statements were filed by the respondents in respect of the allegations made by the petitioners.
Although in the petition, the reference by the Punjab Government had been assailed on a large number of grounds Mr. Dalip Chand Gupta, learned counsel appearing for the petitioners confined his arguments to four points only, which are as under :--
1. That the dispute referred to the Tribunal was a dispute between the Company on the one hand and certain individual workers on the other and for that reason it could not be termed as an industrial dispute capable of being referred to the Industrial Tribunal under Section 10 of the Industrial Disputes Act.
2. That the workmen had been discharged from service on 23rd April, 1955 and were no longer in the employment of the Company as on the date of reference. They did not fall within the definition of workmen as given in the Act before its amendment in the year 1956 and the dispute could not fall within the definition of 'industrial dispute' as given in the original Act of 1947 before its amendment in 1956.
3. That although the Industrial Tribunal, before whom disputes were then pending, had refused permission to the Company under Section 33 of the Act to discharge the employees aforesaid, the Labour Appellate Tribunal had accorded such permission and the discharge had been made under the permission of the Labour Appellate Tribunal. The order of the Lucknow Bench of the Allahabad High Court quashing the order of the Labour Appellate Tribunal was under appeal before the Supreme Court and the matter must therefore be treated as sub judice and should not be decided by the Industrial Tribunal.
4. That in any case a direction or order should be issued to the Industrial Tribunal to decide the preliminary objections before it enters upon the reference.
3. Regarding the first point the main contention of Mr. Gupta is that the dispute is only of five individuals and cannot be termed as an Industrial dispute. In para 13 of the written statement Of the Labour Commissioner, which Is duly supported by an affidavit, it is stated that the Bhupendra Cement Workers Union, Surajpur, has been representing the cause of the workers for reinstatement from the very beginning and before the present reference was made the parties were called for a conciliation by the Labour Commissioner and Conciliation Officer, Punjab vide letter No. ID/PT/10-57/I8124, dated 12th December, 1956.
This contention has also been raised by the workers. The petitioners do not admit the correctness of the aforesaid allegations of the Labour Commissioner and it is therefore a case where evidence will be necessary to decide the facts. Both parties have already taken pleas on this point before the Labour Tribunal and the matter will be appropriately decided by the Tribunal after recording all the evidence produced by the parties. If the Tribunal ultimately comes to the conclusion that the dispute does not fall within the ambit of the definition of 'industrial dispute', it will obviously record an order refusing to proceed with the reference. I cannot at this stage decide the matter as the decision rests upon a question of fact depending upon evidence to be led by the parties for and against their contentions.
4. Regarding the second point the contention of Mr. Gupta is that the workmen mentioned above do not fall within the ambit of the definition of 'workmen' as given in the original Act previous to its amendment by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (Act NO. 36 of 1956), and that the dispute in question does not fall within the definition of 'industrial dispute' as given in Section 2(k) of the original Act.
Mr. Gupta relies for this argument on a ruling of the Allahabad High Court in Bharat Glass Factory v. M. P. Vidyarthi, 1957-1 Lab LJ 212 (A), and another ruling of the Calcutta High Court in Bilash Chandra Mitra v. Balmer Lawrie and Co. Ltd., 1953-1 Lab LJ 337: (AIR 1953 Cal 613) (B). In my opinion, however, the point is concluded by the judgment of the Supreme Court in Central Provinces Transport Services Ltd. v. Raghunath Gopal Patwardhan, 1957-1 Lab LJ 27: ( (S) AIR 1957 SC 104) (C). Their Lordships of the Supreme Court in that case relied upon a previous decision of the Federal Court reported in Western India Automobile Association v Industrial Tribunal, Bombay, 1949 FCR 321: (AIR 1949 FC 111) (D), and held-
'The question whether a dismissed employee is an 'employee' within the meaning of Section 2(10) of the Central Provinces and Berar Industrial Disputes Act (XXIII of 1947) must be held to be concluded by the decision of this Federal Court in 1949 Lab LJ 249: (AIR 1949 FC 111) (D). The definition of 'industrial dispute' in Section 2(12) of Act XXIII of 1947, which is in part materia with the definition in Section 2(k) of the Industrial Disputes Act, must be held to be wide enough to include a claim for reinstatement of a dismissed employee.'
In the Management, the Hindustan Times Ltd. New Delhi v. The Chief Commissioner. Delhi, (AIR 1957 Punj 102) (E), this Court also took the same view and Falshaw J.. following the aforesaid Federal Court and Supreme Court cases held-
'The fact that the employee was dismissed before the dispute in respect thereof arose does not in itself make the dispute not an industrial dispute for purposes of the Act. Such an employee is a 'workman' within the meaning of the definition in Section 2(s) and the dispute is an 'industrial dispute'.'
I understand that the aforesaid Judgment of Falshaw J., has recently been upheld in the Letters Patent appeal against the same which was heard recently by the Circuit Bench at Delhi. ASection the records of the Letters Patent Appeal have yet not reached Chandigarh I could not have the advantage of perusing that judgment. I am unable to hold that the workmen aforesaid did not fall within the ambit of the Act and that the industrial dispute in question did not fall within the ambit of its definition as given in the original Act. Moreover, I feel that the present dispute is really between the Company on the one hand and the present workers of the Company on the other. The workers' union can certainly take up the dispute that five of their workmen had been wrongly dismissed and it would be a dispute falling within the ambit of an 'industrial dispute'.
5. On the third point the main contentions of the learned counsel for the petitioners were that in the year 1955 disputes were pending in the Industrial Tribunal as between the Company and its workers. The Company wanted to discharge the five workers mentioned above and for this purpose they made an application to the Tribunal under Section 33 of the Act soliciting permission of the Tribunal to dismiss the workers. The Industrial Tribunal did not accord the permission and gave an award. The Company went-in appeal to the Labour Appellate Tribunal and the said Tribunal on 17-3-1955 set aside the order of the Industrial Tribunal refusing permission regarding the dismissal of the employees. The employees were dismissed on 23-4-1955. On. 12-9-1955 the workers (respondents Nos. 4 to 8)' filed in the Allahabad High Court petitions under Article 226 of the Constitution of India praying for a writ of certiorari to issue quashing the order of the Labour Appellate Tribunal, dated 17-3-1955. The petitions of Mehnga Ram Janak Raj Soni, Vishwa Nath and Daulat Singh were accepted by the Lucknow Bench of the Allahabad High Court and the orders of the Labour Appellate Tribunal according permission for their dismissal were quashed. The petition or Malik Ram Khaima, however, was dismissed. The Company as well as Malik Ram Khanna filed petitions for leave to appeal to the Supreme Court and the Allahabad High Court granted the requisite leave. The Company has filed appeals in the Supreme Court in respect of respondents Nos 4 to 7 and Malik Ram Khanna has filed an appeal in the Supreme Court in respect of the dismissal of his petition. These appeals are still pending in the Supreme Court & I am told will take a pretty long time to be heard and disposed of. Mr. Gupta urges that the matter being sub judice in the Supreme Court the Punjab Government should not have made the reference in question and the Tribunal should not proceed to decide the same. I am unable to agree with this contention The present reference is on the merits of dismissal and the dispute referred to the Tribunal is as under:
'Whether the dismissal of the following workmen is justified and if not whether they should be reinstated and compensated for the period of unemployment.'
This matter is evidently not before the Supreme Court. The Supreme Court is only concerned with the point as to whether permission to discharge the workers could or could not be granted under Section 33 of the Act. The grounds of dismissal & the respective merits of each of the grounds have to be determined by the Tribunal and this matter cannot certainly be said to be subjudice. Even if permission is granted to dismiss employees, a dispute can still be raised as to whether the dismissal is justified on its merits and whether the workers should be reinstated and compensated for the period of unemployment. The ruling reported as Management of Ambis Cafe v. Thangavelu, (S) AIR 1957 Mad 617 (F), lends support to this view.
6. Regarding the fourth point I have already given a complete history of the proceedings before the Industrial Tribunal. It appears that the Company realized the fact that the preliminary objections could not be decided without recording evidence of the parties and although it originally desired in its written statement the decision of the preliminary objections earlier than the rest of the matters, it did not press the point before the Industrial Tribunal till September, 1957. By that time the company's evidence had been closed and the evidence of the workmen only remained to be examined.
The request of the Company in this respect was much belated and was rightly rejected. The Company has already examined its entire evidence on the merits also and the evidence of the workers would also have finished by this time if the Company had not obtained a stay order from this Court. The decision of the preliminary objections depends upon evidence on the points as to whether the Union of workers has taken up the dispute and as to whether there had been attempts for conciliation of the matter by the Conciliation Officer.
I do not therefore feel inclined to issue any directions to the Tribunal that the decision of the preliminary objections be made earlier than the decision of the rest of the matters on merits. The case has already been pending before the Tribunal for about a year and it is in the interest of both the parties that it should be decided finally at as early a date as possible.
7. Lastly Mr. Gupta contended that the Industrial Tribunal at present trying the case has already expressed its opinion and that the case should now be transferred to some other Tribunal. In my opinion the Industrial Tribunal has not made any expression of opinion which is likely to prejudice its decision in the matter and I am unable to accept the request for transfer of the ease.
Moreover the reference having been made by the Punjab Government to a particular tribunal I have no power to withdraw the case from that tribunal and to refer it to another tribunal
8. In the result I dismiss this petition with costs.