Skip to content

Workmen of Dharampal Premchand (Saughandhi) Vs. Dharampal Premchand (Saughandhi) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtSupreme Court of India
Decided On
Reported inAIR1966SC182; [1965(11)FLR53]; (1965)ILLJ668SC; [1965]3SCR394
ActsIndustrial Disputes Act, 1947 - Sections 2, 10(1), 12(5) and 36
AppellantWorkmen of Dharampal Premchand (Saughandhi)
RespondentDharampal Premchand (Saughandhi)
Cases Referred and The Newspapers Ltd. v. TheState Industrial Tribunal
.....and felt its incapacity to adjudicate the matter - supreme court approached by special leave - union of workmen of an industry may take up dispute related to dismissal of workmen of another establishment of same industry who have no trade union - observed that employees had joined trade union before dismissal - object of trade union would be frustrated if such acts not appreciated - held, tribunal was in error while rejecting reference on ground that dispute was an individual dispute and not an industrial dispute within the meaning of section 2 (k). - section 16 (1) (c): [s.b.sinha & cyriac joseph,jj] suit for specific performance - readiness and willingness to perform contract held, it is not necessary that entire amount of consideration should be kept ready by plaintiff. plaintiff..........7. in support of its conclusion, the tribunal has relied upon the decisionof this court in bombay union of journalists and others v. the'hindu', bombay, & anr. : (1961)iillj436sc . in that case, theservices of one salivateeswaran, who claimed that he was a full-time employeeof the 'hindu', a daily newspaper published in madras, wereterminated and an industrial dispute was raised in respect of the saidtermination by the bombay union of journalists. the contention raised by theemployer was that the reference was invalid inasmuch as the dispute referredfor adjudication was an individual dispute and not an industrial dispute. thiscontention was accepted by the tribunal; and that brought the dispute beforethis court. 8. in dealing with the effect of the decision pronounced by this.....

Gajendragadkar, C.J.

1. The short question of law which arises for our decision in this appeal iswhether the order passed by the Delhi Administration referring the disputebetween the applicants, the workmen of M/s Dharampal Premchand Saughandhi andthe respondent, the employer, M/s Dharampal Premchand Saughandhi, Delhi, wasvalid. The order of reference has been passed by the Delhi Administration underSections 10(1)(d) and 12(5) of the Industrial Disputes Act, 1947 (No. 14 of 1947)(hereinafter called the Act). When the Industrial Tribunal, Delhi took up thismatter for hearing, the respondent raised a preliminary objection that thereference was invalid inasmuch as the dispute referred to the Tribunal by theimpugned order of reference is not an industrial dispute, but is merely anindividual dispute which cannot be the subject-matter of a valid referenceunder s. 10(1) of the Act. This contention has been upheld by the Tribunal withthe result that the Tribunal has held that it has no jurisdiction to adjudicateupon the merits of the dispute referred to it. It is against this order thatthe appellants have come to this Court by special leave. On behalf of theappellants, Mr. Sukumar Ghose contends that the view taken by Tribunal is notsound, and that raise the question as to whether the dispute referred to theTribunal for its adjudication in the present case can be said to be anindustrial dispute within the meaning of s. 2(k) of the Act.

2. The facts which it is necessary to state for the purpose of dealing withthis point are very few and they are not in dispute. The respondent is a firmwhich carries on business as perfumers and tobacconists in Chandni Chowk,Delhi. On 28 July, 1961, the respondent passed the impugned order dismissingthe services of its 18 employees. On that date, the respondent had in its employment45 employees. It appears that on 16 July, 1961, the 18 employees who weredismissed by the respondent had become members of the Mercantile Employees'Association which is a registered Trade Union in Delhi. On 29th July, 1961, thesaid Association took up the cause of the dismissed employees and carried thedispute before the Conciliation Officer, Delhi. The conciliation proceedingshowever, failed, and at the instance of the Association the present referencewas made on the 6th September 1961. It is the light of these facts that we haveto decide whether the dispute referred to the Tribunal for its adjudication isan industrial dispute within the meaning of s. 2(k) of the Act or not.

3. Section 2(k) defines an 'industrial dispute' as meaning anydispute or difference between employers and employees, or between employers andworkmen, or between workmen and workmen, which is connected with the employmentor non-employment or the terms of employment or with the condition of labour,of any person. This definition shows that before any dispute raised by anyperson can be said to be an industrial dispute, it must be shown that it isconnected with the employment or non-employment of that person. This conditionsis satisfied in the present case, because the dispute is in relation to thedismissal of 18 workmen, and in that sense, it does relate either to theiremployment or non-employment. The question however, still remains whether it isa dispute between employers and workmen. Literally construed, this definitionmake take within its sweep a dispute between a single workman and his employer,because the plural in the context, will include the singular. Besides, in thepresent case, the dispute is in fact between 18 workmen on the one hand, andtheir employer on the other, and that satisfies the requirement imposed by thefact that the word 'workmen' in the context is used in the plural.But the decisions of this Court have consistently taken the view that in orderthat dispute between a single employee and his employer should be validlyreferred under s. 10 of the Act, it is necessary that it should have been takenup by the Union to which the employee belongs or by a number of employees. Onthis view, a dispute between an employer and a single employee cannot, byitself, be treated as an industrial dispute, unless it is sponsored or espousedby the Union of workmen or by a number of workmen. In other words, if a workmenis dismissed by his employer and the dismissed workman's case is that hisdismissal is wrongful, he can legitimately have the said dispute referred foradjudication before an Industrial Tribunal under s. 10(1) of the Act, provideda claim for such a reference is supported either by the Union to which hebelongs or by a number of workmen, vide Central provinces Transport Services v.Raghunath Gopal Patwardhan : (1957)ILLJ27SC and The Newspapers Ltd. v. TheState Industrial Tribunal, U.P. : (1957)IILLJ1SC .

4. This view is based on a consideration of the general policy underlyingthe provisions of the Act. As is well-known, the Act has been passed for theinvestigation and settlement of industrial disputes, and its materialprovisions have been enacted, because it was thought expedient to makeprovision for such investigation and settlement of disputes, keeping in mindthe importance of the development of Trade Union movement on proper lines inthis country. Having regard to this broad policy underlying the Act, this Courtand indeed a majority of Industrial Tribunals, are inclined to take the viewthat notwithstanding the width of the words used by the Act in defining an'industrial dispute', it would be expedient to require that a disputeraised by a dismissed employee cannot become an industrial dispute, unless itis supported either by his Union or, in the absence of a Union, by a number ofworkmen. Unless such a limitation was introduced, claims for reference may bemade frivolously and unreasonably by dismissed employees, and that would beundesirable.

5. Besides, in order to safeguard the interests of the working class in thiscountry, it was thought that the development of Trade Union movement on healthyTrade Union lines was essential and that requires that disputes betweenemployers and employees should be settle on a collective basis. A complaintagainst wrongful dismissal should therefore, be the subject-matter ofreference, provided the workmen acting collectively take up the case of thedismissed employee and contend that the dismissal is unjustified or wrongful.It is on these grounds that this Court has held that an individual disputearising from an alleged wrongful dismissal of an employee can be validityreferred under s. 10 only if it is supported by the Union of the workmen towhich the dismissed employee belongs or by a group of his co-employees. Thereis no dispute that the Mercantile Employees' Association has taken up thedispute on behalf of the 18 dismissed employees. In fact, as we have alreadyindicated, the said Association took up this dispute before the ConciliationOfficer and when the conciliation proceeding failed, it successfully moved theDelhi Administration to make a reference under s. 10(1) of the Act.

6. It was, however, urged before the Tribunal that besides the 18 dismissedemployees no other employee of the respondent is a member of the saidAssociation, and so, it was contended that the said Association was notauthorised to raise the dispute, and in the absence of proof of the fact thatthe dispute had been sponsored or espoused by the Union of the employees of therespondent, the reference should be held to be invalid. This contention hasbeen upheld by the Tribunal; and so, the question which we have to decide iswhether the Tribunal was right in holding that the Mercantile Employees'Association had no authority to raise and support the present dispute.

7. In support of its conclusion, the Tribunal has relied upon the decisionof this Court in Bombay Union of Journalists and others v. The'Hindu', Bombay, & Anr. : (1961)IILLJ436SC . In that case, theservices of one Salivateeswaran, who claimed that he was a full-time employeeof the 'Hindu', a daily newspaper published in Madras, wereterminated and an industrial dispute was raised in respect of the saidtermination by the Bombay Union of Journalists. The contention raised by theemployer was that the reference was invalid inasmuch as the dispute referredfor adjudication was an individual dispute and not an industrial dispute. Thiscontention was accepted by the Tribunal; and that brought the dispute beforethis Court.

8. In dealing with the effect of the decision pronounced by this Court inthat case and particularly certain observations made in the course of thejudgment, it is necessary to bear in mind one finding of fact which had beenrecorded by the Tribunal and confirmed by this Court. It appears that in thatcase, the appellants strongly relied upon a resolution passed on April 17,1948, by which it was alleged that the Bombay Union of Journalists had taken upthe dispute of Salivateeswaran against the 'Hindu' and had decided todemand reliefs for the 'retrenched Journalist'. Evidence was led toprove that such a resolution had been passed, but that evidence was discardedboth by the Tribunal and this Court, and this Court definitely found that'the evidence tends to establish the plea raised by respondent No. 1 thatthe record of the alleged resolution was fabricated with a view to support thecase of Salivateeswaran'. In other words, in point of fact, there was noreliable evidence to show that the Bombay Union of Journalists had taken up thecase of the retrenched employee Salivateeswaran. In view of this finding, itfollows that the observations made by this Court in regard to the requirementsof a valid reference under s. 10(1) of the Act are in the nature of obiterobservations.

9. It does appear that in dealing with the point of law as to therequirements of a valid reference, this Court observed that 'the dispute,in the present case, being prima facie an individual dispute, in order that itmay become an industrial dispute, it had to be established that it had beentaken up by the Union of employees of the 'Hindu', Bombay, or by anappreciable number of employees of the 'Hindu', Bombay. Similarly, itwas also observed that the 'principle that the persons who seek to supportthe cause of a workman must themselves be directly and substantially interestedin the dispute, applied to the case before the Court'; and so, one of thetests which this Court applied was whether the persons who supported the cause,were employees of the same employer; if they were not, it was thought that theycould not be regarded as interested in the dispute and as such, their supportmay not convert an individual dispute into an industrial dispute. That is whythe support lent to the cause of Salivateeswaran by the Bombay Union ofJournalists was found to be insufficient to convert the cause into anindustrial dispute.

10. These observations, no doubt, prima facie lend support to the view whichthe Tribunal has accepted. It appears that the Bombay Union of Journalists hadon its roll several working Journalists in other journals; but out of the threeworking journalists working with the 'Hindu' at its Bombay office,two had become the members of the Bombay Union of Journalists, viz.,Salivateeswaran and Venkateswaran. Tiwari, the third working journalist workingin the office of the 'Hindu', Bombay, had not become a member of thesaid Union. In the Office of the 'Hindu', there were seven otherworkmen, but they were working on the administrative side. In other words, outof the ten employees in the office of the 'Hindu', seven were on theadministrative side, and three on the journalism side; and out of these three,two were members of the Union. It is in the light of these facts that thisCourt expressed the opinion that the Bombay Union of Journalists was notcompetent to raise the dispute, and even if it had raised it, the dispute couldnot have become an industrial dispute.

11. In our opinion, the observations on which the Tribunal has relied insupport of its conclusion in the present case, should not be read as layingdown any hard and fast rule in the matter. Take, for instance, the case of anemployer who employs 20 workmen, and assume that these workmen have not formedany Union. If the employer illegally dismisses all the workmen employed by him,it cannot be suggested that the dispute about the dismissal of these employeeswould not become an industrial dispute because there is no Union to supportthem and the dismissed employees themselves cannot convert their individualdispute into an industrial dispute. In the present case, out of 45 employees 18have been dismissed, and there in no evidence to show that these employees havea Union of their own. In such a case, it would be difficult to hold that thoughthe number of employees dismissed is 18, they cannot raise a dispute bythemselves in a formal manner. Considerations which would be relevant indealing with a dispute relating to an individual employee's dismissal, wouldnot be material in dealing with a case where a large number of employees havebeen dismissed on the same day. It is not disputed that a union of workmen mayvalidly raise a dispute as to dismissal even though it may be a union of theminority of the workmen employed in any establishment. The majority union, ofcourse, can raise a dispute, and if a reference is made under s. 10(1) of theAct at its instance, the reference is valid. Similarly, if there is no union ofworkmen in any establishment, a group of employees can raise the dispute andthe dispute then becomes an industrial dispute, though it may relate to thedismissal of an individual employee. This position is not disputed. If that isso, it is difficult, we think, to apply or extend the observations made in thecase of Bombay Union of Journalists : (1961)IILLJ436SC to the present case.In the present case, we are dealing with a reference made by the DelhiAdministration in relation to the appellants' contention that the dismissal of18 employees is invalid, and not with a case of the dismissal of a singleemployee. Therefore, we do not think that the Tribunal was right in relyingupon the decision in the case of Bombay Union of Journalists : (1961)IILLJ436SC in support of its conclusion that the present reference was invalid.

12. It is well-known that in dealing with industrial disputes, industrialadjudication is generally reluctant to lay down any hard and fast rule or adoptany test of general or universal application. The approach of industrialadjudication in dealing with industrial disputes had necessarily to bepragmatic, and the tests which it applies and the consideration on which itrelies would vary from case to case and would not admit of any rigid orinflexible formula. There is no doubt that the limitations introduced by thedecisions of this Court in interpreting the effect of the definition prescribedby s. 2(k) of the Act were based on such pragmatic considerations. It may alsobe conceded that if the dismissal of an individual employee working in anestablishment in Delhi is taken up by the union of workmen in a place away fromDelhi, that would clearly not make the dispute an industrial dispute. Section36 of the Act which deals with the representation of parties, incidentlysuggests that the union which can raise an individual dispute as to a dismissalvalidly, should be a union of the same industry. Generally, it is the union ofthe workmen working in the same establishment which has passed the impugnedorder of dismissal. But in a given case, it is conceivable that the workmen ofan establishment have no union of their own, and some or all of them join theunion of another establishment belonging to the same industry. In such a case,if the said union takes up the cause of the workmen working in an establishmentwhich has no union of its own, it would be unreasonable to hold that thedispute does not become an industrial dispute, because the union which hassponsored it is not the union exclusively of the workmen working in theestablishment concerned. In every case where industrial adjudication has todecide whether a reference in regard to the dismissal of an industrial employeeis validly made or not, it would always be necessary to enquire whether theunion which has sponsored the case can fairly claim a representative characterin such a way that its support to the cause would make the dispute anindustrial dispute. 'Industry' has been defined by s. 2(j) of the Actand it seems to us that in some cases the union of workmen working in oneindustry may be competent to raise a dispute about the wrongful dismissal of anemployee engaged in an establishment belonging to the same industry whereworkmen in such an establishment have no union of their own, and an appreciablenumber of such workmen had joined such other union before their dismissal. Infact, the object of trade union movement is to encourage the formation oflarger and bigger unions on healthy and proper trade union lines, and thisobject would be frustrated if industrial adjudication were to adopt the rigidrule that before any dispute about wrongful dismissal can be validly referredunder s. 10(1) of the Act, it should receive the support of the unionconsisting exclusively of the workmen working in the establishment concerned.

13. Besides, there is another way in which this question can be considered.If 18 workmen are dismissed by an order passed on the same day, it would beunreasonable to hold that they themselves do not form a group of workmen whichwould be justified in supporting the cause of one another. In dealing with thisquestion, we ought not to forget the basic theory on which limitation has beenintroduced by this Court on the denotation of the words 'industrialdispute' as defined by s. 2(k) of the Act. Therefore, we are satisfiedthat the Tribunal was in error in rejecting the reference on the preliminaryground that the dispute referred to it was an individual dispute and not anindustrial dispute within the meaning of s. 2(k).

14. The result is, the appeal is allowed, the finding of the Tribunal on thepreliminary issue is reversed, and the matter is sent back to the Tribunal fordisposal in accordance with law. There would be no order as to costs.

15. Appeal allowed.

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //