Prithvi Raj, J.
1. By this writ petition the petitioner, It had Motors (P) Ltd., (herein to be called the company) has sought a declaration that the order of reference No. C-108/ALC/(4)/ 68-Lab, dated the 19th November, 1968, whereby the dispute about the entitlement of Bihari Lal, (herein to be called the workman) to pay provident fund, bonus and allowances as admissible to the checkers of the company was referred for adjudication to the Additional Industrial Tribunal (herein to be called The Tribunal) is ultra virus of the Industrial Disputes Act, 1947 (herein to be called the Act) and that the award dated the 2nd April, 1971, made by the Tribunal as published in Delhi Gazette, Part VI, dated the 3rd June, 1971, be quashed.
2. Brief facts of the case are that the workman was employed by the company and in 1950 he was working as a checker. The company in partnership with M/s. Mool Chand Shripal Jain, owned a petrol pump at Azadpur, Delhi, which was subsequently shifted to G.T. Karnal Road, Delhi. Disputes arose inter se between the share-holders of the company about the management of its affairs. Some of the share-holders in October, 1960, filed a petition in the Punjab High Court under the Indian Companies Act. During the pendency of the petition, the parties compromised the disputes whereby the management of the company was divided into two groups commonly known as V group and K group of the company. The compromise was sanctioned by D. K. Mahajan, J., by his order dated 12th May, 1961.
3. In 1968 K group sold its share in the pump to V group per receipt, Annexure 7. The workman put forward a claim vide his letter March 1, 1968, alleging that he was transferred from the company to the petrol pump on an assurance given to him that he would continue to be governed by the terms and conditions of a checker of the company in spite of his transfer to the petrol pump. The workman made a claim against both the groups of the company, i.e., K. group and V group, as well as against M/s. Mool Chand Shripal Jain. The claim of the workman was refuted by all the aforesaid three parties. The conciliation proceedings did not bear any fruit. As a result the matter was referred for adjudication to the Tribunal by notification dated the 19th November, 1968, Annexure 8.
4. Before the Tribunal the managements of V and K. groups filed their written statements challenging the claim of the workman on various grounds such as that the dispute was hopelessly belated having been raised after 18 years from the alleged cause of action ; that the dispute was an individual dispute and was not espoused by the workmen of the company ; that the Delhi Motor Transport Workers' Union which had taken up the dispute was not a union of the company and consequently it was alleged that the reference was incompetent. Both the groups, however, on merits denied their liability.
5. The Tribunal negatived the contention of the company holding that the dispute was raised by Delhi Private Motor Transport Workers' Union which had 32 members from the employees of the management and that the dispute was an industrial dispute. The Tribunal further held that there is no limitation prescribed for an industrial dispute and that the cause of action arose to the workmen in 1961 when the compromise was effected between the K and V groups and the name of the said workman was not mentioned in the lists of the employees taken over by each of the said groups. The Tribunal in the result allowed the claim of the workman.
6. The award of the Tribunal has been challenged on the following grounds:
(i) that the workman had accepted the management of the petrol pump as his employer and that being so, he had no claim against the company;
(ii) that the dispute referred to the Tribunal was an individual dispute and not an industrial dispute and that the reference was, thereforee, bad in law ;
(iii) that there was inordinate delay in raising the dispute. The Tribunal was wrong in entertaining a belated claim:
(iv) that in any event the entire responsibility before 15th November, 1968 could not be fastened on the petitioner represented by V group.
7. Taking up the first ground Shri Rajinder Dhawan, learned Counsel for the petitioner, submitted that the workman had accepted the management of the petrol pump as its employer and as such he had no claim against the company. Reliance was placed upon a letter dated 28th January, 1969. Annexure 5, from the staff of the petrol pump wherein the workman along with the other employees of the petrol pump had made a request to the management of the petrol pump that the salary of the staff working on the petrol pump was meagre; that during the last ten years, the staff was not given any increment. Accordingly the staff prayed for an increase in its emoluments. It was, thereforee, contended that even in 1969 the workman had accepted the [management of the petrol pump as its employer. It was also contended that the workman had all along accepted himself as the employee of the pump. That is why he never raised the dispute earlier.
8. I am afraid, there is no force in this contention.
9. In Pyarchand Kesarimal Porwal Bidi Factory v. Onkar Laxman Thenge : (1970)ILLJ492SC , was observed at p. 827,.transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service by mutual consent and to make a new contract between the employee and the third party. thereforee, so long as the contract of service is not terminated a new contract is not made as aforesaid and the employee continues to be in the employment of the employer. thereforee, when an employer orders him to do a certain work for another person, the employee still continues to be in his employment The only thing that happens in such a case is that he carries out the orders of master. The employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that he has hired his services, but that is because of his agreement with the employer. That does not preclude the employee from claiming his wages from the employer. The hirer may also exercise control and direction in the doing of the thing for which he is hired or even the manner in which it is to be done. But if the employee fails to carry out his direction he cannot dismiss him and can only complain to the employer. The right of dismissal vests in the employer.
10. In the instant case no agreement has been placed on the record between the company, the workman and the management of the petrol pump indicating that the original contract of service between the workman and the company was terminated by mutual consent of the parties and that a new contract between the workman and the management of the petrol pump had come into being. The workman by his petition dated 4th June, 1955, Annexure R/3, had claimed bonus from the company for the years 1951 to 1953. It has been made clear in the said letter that the workman was appointed in the company in 1947, and was transferred to the petrol pump by the order of the management of the company in 1950; that he was again transferred from the petrol pump to the checking duty on 1-6-1951; that he was recalled from checking duty on 1-3-1952; and posted at petrol pump and that there had not been a break in his service even for a day. The workman in the circumstances claimed the bonus from the company for the years 1951 to 1953. The company had placed no material on the record to show that the said claim of the workman was disputed on the ground that he was no longer the employee of the company. Again by letter dated 17th October, 1972, Annexure R/1, the workman claimed salary of a checker and the provident fund from the company, From the said annexures it is evident that the workman always treated himself as the employee of the company and his contention was not controverter by the company.
11. In the instant case the original agreement of service between the company and the workman having not been terminated by mutual consent, the alleged new employer, viz., the petrol pump having not made a new contract with the workman, it has to be held that the workman continued in the employment of the company to work for the petrol pump. Besides, by representations Annexures R/1 and R/3, the workman always claimed his wages as a checker from the company which never took up the position that the workman was not its employee. Annexure R/5 is of no avail to the company. Merely because the workman joined the other employees of the petrol pump in advancing their case for higher wages, would not change the position in law, i.e., in the absence of a specific new contract, the workman continues to be the employee of the company, more so when his contract of service with the company was not terminated by mutual consent. In the circumstances, the Tribunal rightly held that the workman is the employee of the company.
12. Dealing with the second contention that the dispute referred was not an industrial dispute but was an individual dispute, the learned Counsel for the petitioner-company adverting to the statement, Annexure 'A' made before the Tribunal by Shri Kanhaya Lal, which was allowed to be placed on the record by the consent of the parties by my order dated the 15th November, 1972, by an affidavit filed by Shri Kulwant Singh dated the 16th November, 1972, submitted that Kanhaya Lal in cross-examination by Shri S. S. Chadha admitted that the members of the working committee who attended the meeting in which the resolution dated the 10th March, 1968, was passed were 12, out of whom, he, Ram Kishan, Raghber Dayal were from the K group of the company. It was urged that in cross-examination by Shri Dhawan, the witness had admitted that out of the 32 members of the union from the company 30 were from K group while two only were from V group. It is urged that according to the statement of Kanhaya Lal out of 12 members who attended the meeting in which resolution dated 10th March, 1968, was passed, three workmen of the company who were present were all from K group. It was accordingly contended that no workman of V group attended the meeting, and taking into consideration that only two workmen of the V group are members of the union it cannot be said that a considerable section of the workmen of V group had supported the cause of the workman. If it is so, it was contended, the resolution was in disregard of the mandatory provisions of the Act. The dispute all along remained an individual dispute and could not be clothed with the character of an industrial dispute by the support lent by the union by its resolution dated the 10th March, 1968.
13. It was strongly contended that the share-holders of the company being unable to smoothly carry on the business, by a compromise divided the management into two groups known as V and K groups which arrangement had been confirmed by D. K. Mahajan, J., by his order dated 12th May, 1961, as eventually the company has to be divided in the said two groups in the proportion of 7 As, and 9 As. as per report at page 48 of the record of the Local Commissioner appointed by the Court. It was urged that the cardinal principle to be applied in converting the individual dispute of the workman into an industrial dispute would be as to whether the workmen of the V group as a body or a considerable section of them had espoused his cause or not. In the instant case, it was submitted, it was not proved by the workman as to how many workmen were employed with the V group and on their own averment only two workmen from V group are members of the union which sponsored the cause of the workman. In fact on the statement of Kanhaya Lal, it was averred, two workmen of V group by themselves could not be said to be forming part of a considerable section of workmen of V group so as to take up the case of the workman to convert the individual dispute into an industrial dispute.
14. The learned Counsel for the company relied upon Indian Cable Co. Ltd., Calcutta v. Their Workmen 1962 1 L.L.J. 409; in that case the appellant-company considering that its Ambala Branch was not yielding profits decided to close the said branch. The workers raised a dispute stating that as all the branches of the company formed one unit the retrenchment should be done according to ' all India seniority basis' and that they had a legal right to get employment in other branches. Before the Supreme Court, amongst others, it was contended that the disputes of the workmen were individual disputes and not industrial disputes as defined in the Act and that in consequence the Government had no power to refer the same for adjudication; that the branch at Ambala was an Industrial Establishment within the meaning of Section 25G of the Act and that having been closed, no relief could be granted to workmen under that section. Dealing with the contention it was observed at page 271..a reference can validly be made only if an industrial dispute exists or is apprehended, and if an individual dispute becomes an industrial dispute only when it is supported by a union or by a considerable number of workmen, that support must necessarily precede the reference and form the foundation for it.
It was also observed that branches of a company located in different places must be held to be distinct ''industrial establishments' for the purposes of Section 25G. It was also observed that in the absence of functional integrity, i.e., existence of one code relating to the categories of workmen and their scales of wages, each branch has to be held to be a separate establishment.
15. The learned Counsel for the company, thereforee, submitted that admittedly the two groups of the company, viz., K and V groups having divided the company and working independently of each other as distinct and separate groups for management of the affairs of the company it cannot be said that there is any functional integrity relating to the categories of the workmen and their scales of wages in the two groups. That being so, each group has to be held to be a separate establishment. In the instant case, it was submitted, as already noted above, that only two workmen from V group are members of the union and that by itself would not be enough to support the contention that considerable section of the workmen of the V group had supported the cause of the workman. The reference, it was urged, was, thereforee, bad in law because the dispute referred did not fall within the category of an industrial dispute.
16. I am unable to assent to the contention of the learned Counsel for the company as the decision of the Supreme Court in Indian Cable Company's case (supra) proceeded on the uncontradicted evidence of R.W. 1 to the effect that ' the I.C.C. has different scales of pay for different branches '. The Supreme Court accordingly on the said evidence observed that there could be no question of engaging workmen retrenched in one branch in another branch and in consequence the establishment in each branch must be treated as a separate entity. The principle laid down by the Supreme Court in the above-cited case is not applicable to the instant case. Here the claim of the workman is against the company and not against a particular group. The company still remains a legal entity regardless of the fact that the two groups had decided to separate and apportion the assets of the company in the ratio of 9 As. and 7 As. but till that arrangement is finalised, the claim of the workman against the company could be taken up by the union as workmen of the company are its members.
17. Reliance was also placed on Bombay Union of Working Journalists v. The 'Hindu', Bombay : (1961)IILLJ436SC , in which it was observed..the applicability of the Industrial Disputes Act to an individual dispute as distinguished from a dispute involving a group of workmen is excluded, unless the workmen as a body or a considerable section of them make common cause with the individual workman .
In that case the dispute of the workman was taken up by the Bombay Union of Journalists of which union the workman was a member. The Bombay Union of Journalists was a union not of employees of one employer but of all employees in the industry of journalism in Bombay. None of the employees of the Hindu was its member. It was accordingly observed in the context that the dispute to acquire the character of an industrial dispute had to be supported by the union of the employees of the Hindu, Bombay, or by an appreciable number of its employees. On facts it was held that prima fade the dispute was an individual dispute and the support to the cause of the workman by the Union of Journalists could not assist the workman so as to convert it into an industrial dispute.
18. No help can be drawn by the learned Counsel for the company from the above-cited authority as in the instant case 32 employees of the company are members of the union while in the above-cited authority none of the employees of the Hindu was a member of the Bombay Union of Journalists.
19. The learned Counsel for the company next relied upon a decision of the Andhra Pradesh High Court in Benares Hall, Nellore V. Labour Court, Guntur : AIR1968AP136 , in which it was observed that reference to workmen of the establishments who happened to be members of the general union would be irrelevant and to vest the dispute with the character of an industrial dispute the workmen who decided to support an individual workman should be workmen of the employer concerned.
20. The observations of the Andhra Pradesh High Court are equally not applicable to the instant case. It is nowhere alleged by the company that its workmen had formed a union of their own and that a considerable section of the workmen of the union had not supported the cause of the workmen. No question in cross-examination was put to Kanhaya Lal to ascertain whether the workmen of the company had a union of their own or not. If it had been established that the workmen of the company had their own union, in that event, of course, it could be said that the support given by the union to the cause of the workman would not vest the dispute with the character of an industrial dispute. It would be pertinent here to refer to a decision of the Supreme Court in Workmen of Dharampal Prem Chand v. Dharampal Prem Chand : (1965)ILLJ668SC . In that case the firm dismissed its 18 employees on whose behalf the dispute was taken up by the Mercantile Employees' Association whose members the dismissed employees were. A contention was raised that besides the 18 dismissed employees, no other employee of the respondent was a member of the said association and as such the association was not authorised to raise the dispute. Dealing with the contention the Supreme Court observed at page 360:.it is conceivable that the workmen of an establishment have no union of their own, and some or all of them join the union of another establishment belonging to the same industry. In such a case, if such a union takes up the cause of the workmen working in an establishment which has no union of its own, it would be unreasonable to hold that the dispute does not become an industrial dispute because the union which has sponsored it is not the union exclusively of the workmen working in the establishment concerned...in some cases, the union of workmen working in one industry may be competent to raise a dispute about the wrongful dismissal of an employee engaged in an establishment belonging to the same industry where workmen in such an establishment have no union of their own, and an appreciable number of such workmen had joined such other union before their dismissal.
21. Reference may also be made to Workmen of Indian Express (P) Ltd V. Management of Indian Express (P) Ltd. : (1970)IILLJ132SC . In that case the question whether the cause of a workman in a particular establishment in an industry could be sponsored by a union which is not of workmen of that establishment but was one of which membership was open to workmen of other establishments in that industry was considered. Dealing with the contention the Supreme Court observed at page 137,.that where the workmen of an establishment have no union of their own and some or all of them have joined a union of another establishment belonging to the same industry, if such a union takes up the cause of the workmen working in an establishment which has no union of its own, the dispute would become an industrial dispute if such a union can claim a representative character in a way that its support would make the dispute an industrial dispute.
22. In the instant case the company on its own averment, has made in para V of the grounds, has alleged that there were 51 employees on the rolls of the company on the date of reference as per Annexure 10. 32 members of the company being a majority group of the employees having joined the union, the union could be said to represent the workmen of the company. The company has nowhere alleged or proved that its workmen have a separate union of their own. The union passed a resolution dated the 10th March, 1968, espousing the cause of the workman, as is borne out from the statement of Kanhaya Lal, before the reference was made to the Tribunal on the 19th November, 1968. That being the position, applying the ratio of the decision in Workmen of Dharampal Prem Chand's case (supra), it is futile for the company to urge that the support given by the union to the cause of the workman would not vest the dispute with the character of an industrial dispute,
23. Section 2K of the Act defines an industrial dispute which means any dispute or difference between the employee and the employer or between employer and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. The claim of the workman in the instant case pertains to the terms of his employment and is accordingly covered by the definition of the term 'industrial 'dispute'. The Tribunal was, thereforee, right in holding that the dispute was an industrial dispute, the same having been espoused by the union of the workmen in the industry.
24. The third contention of the learned Counsel for the company was that the workman had raised the dispute at a belated stage, viz., after 18 years of his transfer to the petrol pump ; that the accounts of the company were settled between K and V groups who took respective liability of the members of the staff who were allocated to each group and that the two groups had been assessed to income-tax on the basis of the said accounts. In fastening the liability on the company today, it was contended, would amount to reopening the accounts of an earlier date which had since been adjusted in the account books and settled for income-tax purposes. It was, thereforee, contended that the claim now sought to be raised by the workman should not be allowed to be reopened after this long lapse of 18 years. The workman having not raised the claim earlier, it was urged, the same ceased to be a dispute within the meaning of the term 'industrial dispute' The Government, it was submitted, had committed an illegality in referring the dispute to the Tribunal. The precise contention of the learned Counsel for the company was that the workman was transferred to the petrol pump in 1950 and he all along, i.e., from 1950 to 1968, had been paid salary, etc., by the management of the petrol pump. The workman it was stressed, never raised any dispute during the said period that he was not being paid emoluments of a checker in the company. The claim of the workman, it was urged, had, thereforee, become stale which could not be revived on the option of the workman as he was content with the emoluments he received from the petrol pump.
25. There is no merit in this contention as well. The contention of the workman in this respect, as made out in para 9 of the reply-affidavit, is that he was transferred to the petrol pump on the same scale of pay as he was getting as a checker in the company and on the condition that he would continue to enjoy all the benefits such as dearness allowance, other emoluments and service conditions as were applicable to him at the time of his transfer as checker and that he would continue to maintain his lien of service in the company. The workman, thereforee, submits that even after his transfer to the petrol pump he continues to be an employee of the company. The workman has further alleged in para 13 of his reply-affidavit that he made several representations, oral as well as written, claiming the emoluments and other benefits payable to checkers. This assertion of the workman made on oath has not been controverter by the company.
26. From Annexure R/3, copy of the representation dated 4th June, 1955, it is borne out that the workman made a representation to the company claiming that he be paid bonus for the years 1951, 1952 and 1953. In the said representation the workman had designated himself as checker petrol pump, Asad Pur, Delhi. After perusing the bonus list which was drawn out by the management of the company, the workman found that his name did not appear in the said list. He accordingly represented by Annexure R/3 stating, inter alia, that he was appointed in the company in 1947; that he was transferred to the petrol pump by the order of the management of the company in 1950 ; that he was again transferred from petrol pump to checker's duty on 1st June, 1951 and that he was recalled from checking duty on 1st March, 1952, and assigned for performing the duties at petrol pump where he was working since then. The workman, thereforee, contended in the said representation that there had not been a break in his service even for a day. He accordingly requested the management to explain as to why he was not considered for the payment of bonus for the aforesaid years when his service was continuous as his transfer was effected by the order of the management of the company. The factual position brought out by the workman in Annexure R/3 has not been denied by the company.
27. Again in his representation dated the 17th October, 1962, Annexure R/1, addressed to the company, the workman has stated that he was appointed in the company as a checker in 1947 and was transferred to the petrol pump in 1950 under orders of the then manager of the company by a letter assuring him that the facilities and emoluments which were being paid to other checkers in the company would also be available to him. The workman has pin pointedly asserted in the said representation that despite his repeated verbal requests claiming salary that was being paid to the other checkers of the company, the same was not paid to him. He had also stated in the said representation that due deductions in respect of his provident fund were also not being made despite the said fact having been brought to the notice of the management on a number of occasions. He accordingly in the said representation prayed that he be paid the difference in emoluments of a checker and the wages which were being paid to him at the petrol pump. He even made a request that he be recalled to the company. Not a word has been said by the company qua this documentary evidence. In the circumstances, it is evident that the workman had always been pressing his claim for payment of salary of a checker. The mere fact that the company thought that he was no longer their employee and did not take any action, would not entitle the company to take advantage of its own wrong so that as the matter was not finalised by the company during all this period, the workman should suffer the consequences of the same.
28. Besides as held in Pyar Chand Kesarimal Porwal Bidi Factory's case (supra), by assigning the services of the workman at the petrol pump the company as an employer ordered him to do a certain work for another person at the behest of the company which continued to be his employer. By joining the duties at the petrol pump all that the workman did was to carry out the orders of his master, viz. to the company. As such, the workman has a right to claim his wages from the company. The laches committed on the part of the company in not deciding the case of the workman properly cannot be made a ground to repel the claim of the workman by holding that the claim had become stale by 1968 when the dispute was referred to the Tribunal.
29. In H.M. Venkatachaliah v. State of Mysore (1969) 36 FJR 28 : (1970) Lab IC 501, the dispute of the workman was not referred to the Industrial Tribunal. A contention was raised that where a dispute was raised at an extraordinarily belated stage it was within the discretion of the Government to refuse to make a reference. In that case the petitioner while he was an employee of the Mysore Government Road Transport Department was dismissed from service on 13th August, 1957. Mysore State Road Transport Corporation was established on 1st August, 1961. The employees of the department were entitled to opt for service in the Corporation. The petitioner having been dismissed earlier to the setting up of the Corporation, option for service in the Corporation was not made available to him. The dispute which the petitioner sought to be referred to the Tribunal was concerning his prayer for reinstatement in service under the Corporation for which purpose he made an application on 6th June, 1962. The Government dismissed the application on two grounds, namely, (1) that the petitioner had ''no case in law' and (2) that he should have approached the Corporation earlier. The petitioner challenged the order by a writ petition. Dealing with the contention of delay, the Mysore High Court observed at page 29:
The question was not whether the petitioner had approached the Corporation too late, but whether the application presented by him for a reference was a belated application.
However, on merits, the Court found that after the petitioner was dismissed he preferred an appeal to the Government in September, 1957, which was disposed of in May, 1958. The petitioner having been convicted in the meantime of an offence of rash and negligent driving could not take further steps to seek redress. The petitioner was acquitted on an appeal in June, 1959 where after he filed another application to the Government in August, 1959 which was dismissed in March, 1960. In April, 1960 he filed a writ petition which he withdrew in July, 1961, reserving liberty to file an application for reference under Section 10 of the Act. It was accordingly observed by the Court that if the Government had taken into consideration the various events that preceded the presentation of the application dated the 6th June, 1962,
it would have been impossible for it to think that there was any delay in the presentation of the application such as could justify the refusal of the reference....
30. In the instant case from Annexures R/1 and R/3 and the assertions made by the workman on oath in paras 9 and 13 of the reply-affidavit it has to be held that the workman was not sitting silent during this long period but had been strenuously pursuing and pressing his claim. The company having not taken action in time and allowed the time to pass, cannot hold the workman guilty of having committed laches. He being an employee of the company rightly thought that the company would look into his claim and decide the matter in consonance with the principles of justice and fairplay.
31. The learned Counsel for the company strongly relied on a decision of the Supreme Court in between Shalimar Works Ltd. v. Its Workmen : (1959)IILLJ26SC , in which the Supreme Court observed that there was no limitation prescribed for reference of disputes to an Industrial Tribunal but even then it was only reasonable that disputes should be referred as soon as possible after they had arisen. In that case some workmen started sit down strike which continued for a few days. On 6th April, 1948, a notice was given by the company that all those who had resorted to illegal strike from 23rd March, 1948, would be deemed to have been discharged from that date. The company reopened on 6th July, 1948 and thereafter majority of the workmen who applied up to 21st July, 1948, were re-engaged. The company, however, refused to re-engage the old employees who had not applied by 21st July, 1948. The dispute was referred to the Industrial Tribunal in 1952. A contention was raised that the claim of the workmen was a belated claim. On the question of delay the Court observed, as already noted above that it was only reasonable that disputes should be referred as soon as possible after they had arisen. This observation was made by their Lordships of the Supreme Court on the facts and circumstances of that case.
32. In the said case, the dispute related to the claim of the discharged workmen to be reinstated in their jobs. Since, after the reopening of the company fresh recruitment of labour had been made by the management, the Court refused to entertain the claim after a lapse of four years as in entertaining the claim and granting the relief to the aggrieved workmen it would have meant discharging the newly recruited workmen who were recruited in their place on the reopening of the company. It was accordingly in that context of the circumstances that the Court observed that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable lime. It was in the peculiar circumstances of that case that the delay of four years was considered fatal. However, in the present case the question of delay does not arise as the workman had all along been pressing his claim at various stages and reposed faith in the sense of justice of the company for grant of relief that he sought. The workman in the instant case having been in continuous service of the company and having taken up the dispute at an early stage in 1955 in writing and thereafter as well, besides verbally making requests as stated by him in para 13 of the reply affidavit, cannot be accused of having sat silent in the matter or allowed grass to grow under his feet.
33. The learned Counsel for the company next relied upon between State of Bombay v. Krishnan (K.P.) : (1960)IILLJ592SC . In that case the Supreme Court while examining the scope of Section 12(5) of the Act observed ;
It may for instance be open to the Government in considering the question of expediency to enquire whether the dispute raises a claim which is very stale, or which is opposed to the provisions of the Act, or is inconsistent with any agreement between the parties, and if the Government comes to the conclusion that the dispute suffers from infirmities of this character, it may refuse to make the reference.
34. Reliance was also placed by the learned Counsel for the company on between Bombay Union of Journalists v. State of Bombay : (1964)ILLJ351SC , in which case also the Supreme Court observed that if the claim made was patently frivolous or was clearly belated, the appropriate Government may refuse to make a reference.
35. The observations of the Supreme Court in the above-cited two authorities are of no assistance to the company. As already noted in an earlier part of this judgment, no delay has been committed by the workman in the instant case. The principle of law laid down by their Lordships of the Supreme Court in the above cited two authorities is not applicable to the facts of the instant case. Besides, the workman having been held to be an employee of the company in his capacity as a checker has to be paid emoluments of a checker regardless of the fact that his services were assigned to the petrol pump by the employer. The work that he performed at the petrol pump was at the instance and under the orders of the employer. By assigning him to the petrol pump in the interest of work of the employer, the employer cannot evade its responsibility in footing the wages of the workman.
36. In this view of the matter the findings of the Tribunal on issue No. 3 are reaffirmed.
37. This brings me to the fourth and last contention of the learned Counsel for the company that in fastening the liability of V group of the company is respect of arrears of pay, allowances, provident funds, bonus, etc., from 1950 to the date of the award the Tribunal had committed an error of law which is apparent on the face of the record. The contention was grounded on the fact that K group continued to be a partner in the petrol pump till 15th February, 1968, when for consideration received the said group transferred its share to V group vide Annexure 7, and it was contended that for the period 1950 to 15th February. 1968 the liability of the two groups was joint and proportionate to their share in the petrol pump.
38. There appears to be force in the contention of the V group of the company. Since both the groups formed the company and held shares in the petrol pump, the liability of the two groups till 15th February, 1968, being joint, the entire responsibility for the period 1950 to 15th February, 1968, could not be fastened on the V group of the company. The finding of the Tribunal is set aside to this extent and the award is modified accordingly. The two groups will be liable to pay the claim of the workman in proportion to their share in the petrol pump.
39. For the reasons stated above, the writ petition is accepted to the extent of modification made in the award as indicated in the preceding para of this judgment. In the circumstances of the case, the parties shall bear their respective costs.