C.A. Vaidialingam, J.
1. In this writ petition Mr. M. P. Menon, the learned counsel for the petitioner, challenges the award, of the Labour Court, Qullon in I. L). No. 36 of 1901 and published in the State Gazette dated 19-6-1962.
2. The question that was referred to for adjudication by the labour Court, related to the dismissal of Sri Ramanathan by the Management concerned.
3. It is not necessary to go into any great detail regarding the circumstances under which, according to the management, they took action against the workman concerned in this writ petition, because those aspects have not been gone into by the labour court.
4. The action, by way of dismissal of the workman concerned, appears to have been taken on 13-10-1660; and it is the case of the Union, the petitioners in these proceedings, that they decided on 9-11-1930, to take up, or, so to say, to sponsor thecause of Mr. Ramanathan and to contact themanagement in respect of that matter.
5. Ultimately the dispute Itself was referred for adjudication by the State Government to the Labour Court, Qullon.
6. The management appears to have raised a preliminary objection that the dispute that has been referred, for adjudication is an individual dispute and not an industrial dispute under Section 2 (k) of the Act.
7. So far as the plea of the management that this is not an industrial dispute is concerned, that averment is to be seen in paragraph 3 of the written statement filed by the management before the labour court. The management states that they raise the objection that the dispute is not an industrial dispute but only an Individual dispute and that the labour court has no jurisdiction to adjudicate regarding that dispute. The management also say that they do not admit, until it is proved by the Union, that Sri Ramanathan is a member of the Union.
8. The Union filed a replication traversingthe allegations made by the management. In particular, regarding the plea raised by the managementthat the dispute is not an industrial dispute, theUnion takes up the position that the dispute is anindustrial dispute and not an individual dispute.The Union also takes up the position that if theCompany's case is that it is an individual dispute,it is for them to prove it. The Union also givesan explanation for the stand taken by them thatthe dispute ia an industrial dispute and that is,according to them, that Sri Hamanathan has been,a member of the Union for several years and thatfact is Known to the Company. The Union furtherstates that the company has been correspondingwith the Union on the question of Sri Ramanathan'sdismissal and hence the ignorance displayed bythe management regarding the relation of SriRamanathan with the Union is lacking in bonafides. :
9. No doubt it ia also seen that the Union appears to have produced an extract of the minutes of the Executive meeting which is stated to have taken place on 8-11-1960. That is produced in these proceedings as Ex. P1. in particular it will be seen that one of the Items which appear to have been discussed at the meeting was regarding the dismissal of Sri Ramanathan and in that connection they adverted to the fact that there has been correspondence regarding the dismissal of Sri Kamanathan from the management. They also resolved to take up the matter with the management suitably,
10. The labour Court in its award, Ex. P 2 has considered this aspect under Point No. 2. Ultimately it came to the conclusion that the Union in question is not entitled to espouse the cause of the workman concerned because the worker was not a member of the Union concerned either on the date when they decided to epouse his cause, i. e, on 9-11-1960 or on the date when the dispute was referred for adjudication,
11. in this connection, the Labour Court after considering all the materials, including theextract of the minutes viz., Ex. P l in these proceedings, and, having perused the membership register of tne Union came to the conclusion that the membership of Sri Hamanathan automatically ceased by the end of October 1960 or at any rate from the beginning of November 1960. Therefore, according to the Labour Court, at the time when the letter dated 3-11-1960 was addressed to the Executive Committee of the Union and on the basis of which the Committee passed a resolution on 8-11-1960, Sri Ramanathan was not a member of the Association. No doubt in this connection the Labour Court relies upon the decision of the Supreme Conn in Newspapers Ltd. v. Industrial Tribunal, Uttar Pradesh, (1957) 2 Lab. L J 1 : ( (S) AIR 1957 SC 532). On this ground ultimately holding that the dispute referred for adjudication is only an individual dispute the Labour Court passed an award Ex. P 2, which is under attack in these proceedings.
12. Mr. M. P. Menon, the learned counsel for the petitioner urged that the view of the Labour Court that the Union of which the workman concerned is not a member and the Union is not entitled to sponsor the cause of the workman so as to make an individual dispute into an industrial dispute is not warranted by any of the decisions of this Court or of the Supreme Court. The second contention of the petitioner's learned counsel is that, in any event in this case, there has been a body of workmen of this establishment who have made a request to the Union concerned to sponsor the cause of the workman and therefore the Union notwithstanding the fact that the workman concerned is not a member of the Union is entitled to sponsor the cause of the workman- concerned and thus make it an industrial dispute under Section 2 (k) of the Act.
13. This stand taken by the learned counselfor the petitioner has been strenuously controverted by Mr. P. K. Kurien, learned counsel for the management.
14. I have no hesitation in rejecting these two contentions of the learned counsel for the petitioner. It will be seen that as early as 1953, the Supreme Court has categorically laid down two conditions which will make an Individual dispute into an industrial dispute viz., (1) if the cause of the workman concerned is taken up by a Union of which the workman is a member or if the cause of the workman is sponsored or is supported by a substantial body of workmen of the employer.
15. The earliest decision on this aspect is the one reported in D. N. Banerji v. P. R. Mukherjee, AIK 1933 BC 68. The particular proposition referred to earlier is to be found at page 61 of the reports. The same principles have been reiterated in the later decisions of Central Provinces Transport Services Ltd. v. Kaghunath Gopal, (1957) 1 Lab, LJ 27 : ( (S) AIR 1957 SC 104) and (1957) 2 Lab LJ 1 : ( (S) AIK 1957 SC 532). These two decisions are also of the Supreme court. In fact the last decision referred to above refers with approval to the earlier decisions adverted to by me.
16. The position has also been crystallised by the later decision of the Supreme Court in TheBombay Union of Journalists v. The Hindu (1961) 2 Lab. LJ 436 : (AIR 1963 SC 318). In the last decision, the Supreme Court has held that the sponsoring of the cause of the workman, not by the Union of employees of the particular management but by a general Union consisting of the employees of various other managements will not make an individual dispute an industrial dispute. In this case admittedly the petitioner Union is not a Union of the employees of the management concerned. It is a general Union.
17. Then the question arises as to whether the Union is entitled to espouse the cause of a work man, when the latter is not a member of the Union concerned. No doubt Mr. M. P. Menon, learned counsel for the petitioner, has relied on the observations of the Supreme Court in Newspapers Ltd, Allahabad v. U. P. State Industrial Tribunal (1900) 2 Lab. LJ 37 : (AIR 1060 SC 1328), wherein the Supreme Court has observed that when the cause of an employee is sponsored by a Union that will make it an industrial dispute. I do not understand the Supreme Court decision referred to above as in any way differing from the principles already laid down by the Supreme Court in the earlier decisions referred to above.
On the other hand, a perusal of the judgment referred to above and relied on by Mr. M. P. Menon, learned counsel for the petitioner clearly shows that two contentions were taken by the management, viz., (l) that no union sponsored the case of the particular workman; and (2) that the Union which claims to nave sponsored the cause of the workman was not a registered Union. Both these contentions were rejected by the supreme Court on facts. The Supreme Court accepted the findings of the High Court that the Sangham in question has sponsored the cause of the workman. No question as to whether the workman was a member of the Sabha in question or not was however raised for consideration at the hands of the Supreme Court, it is in that context that general observations were made by their Lordships that if a Union sponsor the cause of an employee that will make an industrial dispute.
Therefore the position ultimately in the case before me is that on the findings arrived at by the Labour Court the workman was not a member of the Union at the material time. The Union itself was a general Union and not a Union consisting of the workmen of this establishment. If so, adopting the principles laid down by the Supreme Court in the various decisions referred to above, I hold that the sponsoring of the cause of the workman by the said Union is of no avail, and notwithstanding the said sponsoring, the individual dispute continues to be an individual dispute and has not become an industrial dispute In law.
18. In my view this is enough to dispose of this writ petition because that is the only aspect appears to have been discussed before the Labour Court and therefore the Labour court was invited to adjudicate only upon that,
19. But Mr. M, P. Menon, the learned counsel for the petitioner strenuously urges that there is another aspect which has been lost sight of bythe Labour Court viz., the plea of the Union that there has been a support given by a substantial body of the workmen of this establishment to sponsor the cause of the workmen concerned and hence it is an industrial dispute. Quite naturally the learned counsel for the management takes very serious objection to this Court permitting the petitioner to raise this contention for the first time in these proceedings.
20. Mr. M. P. Menon, learned counsel for the petitioner, no doubt urges that it will be very hard if the union Is not permitted to have this question also considered by the Labour Court, because the result will be that the action of the management in the matter of dismissing the employee in question will continue to be in force without the Labour Court having an opportunity to adjudicate upon the legality or otherwise of the same. I do appreciate the hardship that is pleaded by the learned counsel for the petitioner. But the question is as to whether any relief can be granted on this basis.
21. Whatever might have been the doubts entertained regarding the competency of the particular Union In sponsoring the cause of the workman, which controversy can be more or less said to bo now finally settled by the latest decisions of the Supreme Court in the Bombay case, in my view there has been no controversy on the other aspect, viz., the right of the workman to plead that there, is the support by a substantial body of the work-men of the management to the cause of the employee, and hence It is an industrial dispute. In the rejoinder filed by the Union, it states that the sponsoring of the cause of the workman by the Union is valid and legal. When the management Is prepared to take up the position that it is not an industrial dispute, in my view, there was a duty on the part of the Union which is more or less taking a defence to that plea, to raise all grounds which will sustain its stand that it is not an individual dispute but really an Industrial dispute.
22. It would have been perfectly competent for the Union to take an alternative plea in support of their contention that the dispute is an industrial dispute viz., that there has been a sponsoring of the cause of the workman by the Union or alternatively there has been a support given by a substantial body of the workers.
23. The question therefore to be considered is as to whether the petitioner should be allowed now to raise a new defence that there has been a support given by substantial body of the workmen and hence the dispute is an industrial dispute. The facts to be investigated in such a case will be as to how many employees of this management made the request to the Union concerned to take up the cause of the workman. Further It will have also to be investigated whether a considerable body of the workmen of this management have sponsored the cause of the workman concerned. Unfortunately the Union has not raised this alternative plea before the Labour Court; and that plea, as I have already mentioned, is a plea not available for the first time after the decision of the Supreme Court in the Bombay case, but a plea which was available to the Union, even from 1953. If the Union has not chosen toraise this plea and fought the case only on the tests of the right of the Union, to espouse the cause of the workman, the Union must bear the consequences and this Court cannot, at this late stage, grant any relief.
24. Therefore it is not possible for me to accept the request of the learned counsel for the petitioner and to admit his client to raise an alternative plea and also to give an opportunity to adduce evidence on such matters. The result ultimately is the award of the labour Court as it stands does not require any Interference at the hands of this Court. In the result the writ petition fails and the parties win bear their own costs,