(1) The British India Corporation Limited by means of this petition under Articles 226 and 227 of the constitution of India seeks to assail the order dated 13th November 1963 of the Industrial Tribunal by which the learned Tribunal repelled the objections of the petitioner with regard to the validity of the reference to the Tribunal under subsection (2) of section 10 of the Industrial Disputes Act (hereinafter referred to as the Act).
(2) The brief facts of the case are that in connect with some fight between Jiva Mal respondent No. 2 and Waryam Singh, employees of the petitioner-company its New Egerton Woolen Mills Dhariwal, the management of the petitioner-company dismissal was upheld by the Industrial Tribunal but we are not concerned with that. At the time of the dismissal of Jiva Mal certain dispute were pending for adjudication before the Tribunal and accordingly the management made an application under sub-section (2) of section 33 of the Act for obtaining approval for their action. The Tribunal did not grant that approval regarding Jiva Mal on the ground of non-compliance with the provisions of section 33 of the Act. The Management thereupon passed an order directing that Jiva Mal be paid wages till 1st December 1958. A fresh application was then filed seeking approval of dismissal the application. A writ petition was filed against this order but it was dismissed by a Division Bench of this Court 12th October 1961.
(3) On 12th September 1962 the Works Union of the Mills gave a demand notice to the petitioner company claiming that the dismissal of Jiva Mal was illegal and he should be reinstated. The parties counsel are agreed that item No. 8 of the said notice was to the following effect:
'The dismissal of Jiva Mal Clerk is illegal. He should be reinstated and be paid the full back wages.'
In pursuance of the above demand notice conciliation proceedings were held by the Conciliation Officer, Jullundur and during the course of conciliation the parties jointly made on 18th October, 1962 an application before the Conciliation Officer the operative part of which was as under:
'It is hereby requested that the demand No. 8 in the demand notice dated 12-9-1962 surrounding the wrongful and illegal alleged dismissal may be referred for adjudication. This is joint request of both the parties.'
This application was signed by the representative of the Management as well as the Workers Union Certain formalities had to be complied with in pursuance of the above agreement but it appears that the Management wanted to wriggle out of the agreement. Accordingly on the following day that is on 19th October 1962, letter was addressed by the Management in which it wasn't that the date of dismissal of Jiva Mal should be incorporated in the agreement of be mentioned as 20th 1958. The Conciliation Officer wrote to both the parties that they should do the needful in complying with the formalities. Accordingly on 19th December 1962 the President of the Workers Union sent letter (Annexure 'D') to the Conciliation Officer. Enclosed with that letter was Form 'A' duly filled in as required by Rule 3 of the Industrial Disputes (Punjab) Rules 1958. In this application the dispute was specified to be.
'Whether the dismissal or whatsoever of Shri Jiva Mal Clerk-in-charge is justified and in order?
If not, whether he should be reinstated to this job with full back wages?'
The Management also filled in form 'A' and in that specified the dispute to be:
'Whether Shri Jiva Mal was rightly dismissed on 20th August 1958? If not to what relief he is entitled.'
The Punjab Government thereupon referred the following dispute for adjudication to the Tribunal under sub-section (2) of section 10 of the Act:
'Whether the dismissal of Shri Jiva Mal Clerk-in-charge is justified and in order? If not to what relief is he entitled?'
The Management thereupon sent a letter dated 15th April 1958 to the Punjab Government stating that in the reference the date of dismissal should also be mentioned as 20th August 1958. As no action apparently was taken on the above representation of the Management the Management took an objection before the Tribunal about the validity of the reference on the ground that the date of dismissal should have been mentioned to be 20th August 1958 in the terms of reference. This objection as stated above was repelled by the learned tribunal. Feeling aggrieved, the petitioner has approached this Court by means of this writ petition.
(4) Sub-section (2) of section 10 of the Act under which the reference was made to the Tribunal reads as under;
(2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately for a reference of the dispute to a Board Court, Labour Court Tribunal or National Tribunal the appropriate Government if satisfied that the persons applying represent the majority of watch party shall make the reference accordingly.'
Plain reading of the above sub-section goes to show that the appropriate Government has to make a reference of an industrial dispute of a Board Court Labour Court, Tribunal or National Tribunal if the parties of the dispute apply in the prescribed manner for the reference of the dispute provided the Government is satisfied that the parsons applying represent the majority of each party. It is not however, necessary that the parties to the dispute should apply jointly and it is quite enough whether they apply jointly or separately.
(5) Mr. Bhagirath Das appearing on behalf of the petitioner has not disputed that the condition about the satisfaction of the Government that the persons applying represented the majority of each party has been fulfilled. His contention, however, is that the nature of dispute mentioned the reference made to the Tribunal and the one specified in the application in the prescribed from 'A', which was filed on behalf of the petitioner, are different and not identical. Whereas, it is pointed out, the application in Form 'A' filed on behalf of the petitioner specified the dispute to relate to the dismissal of Jiva Mal on 20th August 1958, the actual reference has mentioned the dispute to be in respect of Jiva Mal's dismissal without mentioning the date of dismissal. The reference, according to the learned counsel, is therefore invalid.
(6) I have given the matter my consideration and am of the view that the above contention is not well-founded and cannot be accepted. It would appear that there is a difference between the parties as to what should be regarded as the should be regarded as the date of dismissal of Jiva Mal. According to the management the date of dismissal is 20th August 1958 because it was on that date that the order of dismissal was made though the order was subsequently modified in view of the rejection of the application under section 33 of the Act and Jiva Mal was paid wages up to 1st December 1958. The stand taken by the Workers' Union however is that in view of the fact that the approval under section 33 of the Act for dismissal of the Jiva Mal was withheld and wages were paid up to 1st December 1958, the dismissal should be held to have been made not on 20th August 1958 but on subsequent date. The reference actually made leaves the matter open and the main question as to whether the dismissal of Jiva Mal was rightly made has been referred to the Tribunal. The reference has an element of elasticity and avoids any rigid position so that in fairness no party may be handicapped by the terms of reference in presenting its case, Indeed the vital question dispute and which needs adjudication between the parties is about the validity of the dismissal of Jiva Mal and the question as to whether his dismissal was on 20th August 1958 or on some subsequent date is a matter of only ancillary important.
(7) It is no doubt true that the petitioner also mentioned 20th August 1958 as the date of dismissal in the application in Form 'A' in the subject matter of the dispute to be referred but no such date was mentioned when the parties jointly agreed before the Conciliation Officer on 18th October 1962 that the dismissal of Jiva Mal should be referred for adjudication. The joint request was for reference of the dispute as contained in item No. 8 in the demand notice admittedly did not pinpoint to any particular date as the date of dismissal. The dispute which has been referred for adjudication is essentially in accordance with the application is essentially in accordance with the application dated 18th October 1962 which was jointly made by the parties favor referring the dispute to the Tribunal. The mere fact that in the matter of formalities the petitioner while filing form 'A' has tried to wriggle out from the original position to which it was committed cannot have the effect of restricting whittling down the scope of the agreement dated 18th October 1962 which the parties has made a joint request.
In case the position taken by the petitioner were accepted it can lead to all kinds of difficulties and may even render the entire reference to be farcical. In case the date of dismissal of Jiva Mal be mentioned as 20th August 1958 in the reference and the Tribunal finds on the material that the dismissal though wrongful took place on a possibly find it difficult to grant any relief. The entire proceedings of adjudication would in such which cannot be countenanced and this court in the exercise of its discretion in this petition of writ of high prerogative would decline to grant about such a result. Besides that the petitioner company wants to go back on the solemn undertaking given by it before the Conciliation Officer on 18th October 1962 and this Court would be most reluctant to use its discretion in favour of the petitioner when no manifest injustice has been made to it.
(8) Apart from the above, I am of the view that where the two parties to an industrial dispute mutually agree that the dispute be referred for adjudication to the Industrial Tribunal and for that purpose make a joint request to the Conciliation Officer the fact that in format application in Form 'A' mentioned in Rule 3 of the Industrial Dispute (Punjab) Rules 1958 one of the parties makes with a view to draw an undue advantage some variation while specifying the subject matter of the agreed dispute would not prevent the Government from making a reference of the dispute as agreed before the Conciliation Officer to the Industrial Tribunal under sub-section (2) of section 10 of the Act.
(9) Mr. Bhagirath Das has referred to three cases, Travancore Mineral Workers' Union v. Government of India (1957-58) 12 FJR 180 (Punj); free Press Labour Union v. State of Madras, AIR 1952 Mad 74 and Karamchand Thappar and Brothers Ltd. v. Their Clerical Employees, (1952-53) 4 FJR 365(LATI-Cal). The petitioner in my opinion cannot derive any benefit from the above authorities because in none of them the facts were similar to those of the present case. The questions arising for the determination in those authorities because in none of them the facts were similar to those of the present case. The questions arising for determination in those authorities were likewise different. In Tranvancore Mineral workers' Union case (1957-58(12 FJR 180 (Punj) it was held that where only on of the parties makes an application for referring a dispute it would not be open to that party to contend that the reference should be made under sub-section (2) of section 10 of the Act. In the Free Press Labour Union case, AIR 1952 Mad 74 again the Court held that sub-section (2) of section 10 of the Act does not entitle anyone of the parties to an industrial dispute to compel the Government to make a reference. In the case of Karamchand Thappar and Brothers (1952-53) 4 FJR 365 (LATI-Cal) though there were some observations about sub-section (2) of section 10 of the Act the Court was essentially dealing with the validity of a reference under clause (1) of section 10 of the Act the Court was essentially dealing with validity of a reference under clause (1) of section 10 of the Act and held that in such a case no application in the prescribed form is necessary.
(10) The petition accordingly fails and is dismissed but in the circumstances I leave the parties to bear their own costs.
(11) Petition dismissed.