V. Pattashi Ramaiya, J.
1. This is an industrial dispute between the working journalists and the management of the 'Hindu,' Madras. It was originally referred under the Industrial Disputes Act for adjudication by G.O. Ms. No. 2377, dated 17 July 1957, as a dispute between the workers and the management of the 'Hindu.' The point referred for adjudication as stated in the said Government order, is -
1. Whether the termination of services of Sri R. Narasimhan, Sub-editor, is justified and to what relief he is entitled.
2. Subsequently the Government issued a Memorandum No. 90095-LI/57-2, dated 20 September 1957, amending the Government order by substituting the words ' working journalists' for workers and by referring the dispute under Section 3(1) of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act also.
3. After the original reference was issued the Madras Union of Journalists (hereinafter referred to as M.U.J. for the sake of brevity) through its general secretary, who also happens to be the dismissed sub-editor Sri R. Narasimhan, filed a claim statement. The main contention of the union is that the termination of the services of Sri R. Narasimhan is an act of victimization for his trade union activities and that it was not a bona fide order. Thereafter the management filed a counter controverting the averments in the claims statement of the union and stating that their action in dismissing Sri Narasimhan was nothing but disciplinary action taken by them for failure or neglect of duty or inefficiency. For the present purpose it is unnecessary to mention in detail all the contents of the claims and counter-statements, After the amendment of the reference was made by the Government, with the consent of both parties, this was treated as a new dispute and at the request of the management they were permitted to file an additional counter and the union was also given liberty to file a reply thereto. In the additional counter filed by the management it is contended that this is not an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act, that this Court has therefore no jurisdiction to adjudicate upon the same, that there is no dispute between the working journalists on the one hand and the management on the other and that the Madras Union of Journalists is not competent to represent or speak on behalf of the working journalists of the 'Hindu.' It is further pleaded that even if a majority of the working journalists of the 'Hindu' are members of the union, this will not make the dispute as one between the working journalists and the management of the 'Hindu' or give rise to the inference that the working journalists of the 'Hindu' had collectively espoused the cause of Sri R. Narasimhan especially in the absence of an allegation to that effect,
4. Subsequently, the union filed a reply to the additional counter stating that the management had no right to raise an additional issue and that it should be disallowed. But this plea was not seriously pressed at the time of the enquiry and there is no force in it also as the dispute was treated as a fresh one and the management is entitled to raise this plea. Further it is a point of law affecting jurisdiction and can be taken up at any time and even at the stage of arguments. It is further stated in the additional counter that the dispute referred by the Government is an industrial dispute, that the competency of the reference and the jurisdiction of this Court to go into this dispute and adjudicate upon it have to be determined on the basis of the position as it stood on the date of the reference as admitted by the management in its additional counter, It is also stated that the management should strictly prove its assertion that the working journalists of the 'Hindu' have not collectively espoused the cause of Sri Narasimhan.
5. On these contentions of the parties in the additional counter and the reply statement, the following issue was framed by consent as an additional issue :
Is there no industrial dispute between the working journalists on the one hand and the management of the 'Hindu' on the other, in relation to the termination of services of Sri R. Narasimhan as contended by the management?
6. At the request of the management, the additional issue was enquired into as a preliminary issue. It was also necessary to do so as it raised the question of jurisdiction and this point had to be determined before going into the merits of the dispute. This is only a preliminary award relating to the additional issue alone.
7. An 'industrial dispute' is defined by Section 2(k) of the Industrial Disputes Act as
Any dispute or difference between employers and employers or between employers 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 interpretation of this definition came up for consideration in a series of decisions and I shall briefly deal with some of them. In Lakshmi Talkies, Madras v. Muniswami and Ors. : (1955)IILLJ477Mad , Balakrishna Ayyar, J., observed at p. 480.
It seems to me that the true position lies in between the stands taken by counsel on either side. If, for intance, a particular employer fines or otherwise punishes a particular workman, say for carelessness, or dismisses him for theft or damage to property, the workman concerned may feel that he has been wrongly dealt with, but that would be only an individual dispute between him and his employer and it would not be an industrial dispute, But if the employees or a substantial section of them -I do not say that they should amount to a majority-espouse the cause of the workman and insist on the penalty imposed an him being set aside, or on his being reinstated, then whatever their reasons for the step, if they make his cause their own, it will cease to be an individual dispute and . become an industrial dispute. In other words, an individual dispute can be converted into an industrial dispute in cases like the present by the cause of the individual workman being made their cause by the other employees.
In Sri Rama Vilas Service, Ltd. (Kumbakonam Branch), and the State of Madras and Anr. 1956 I L.L.J. 498, the scope of this definition was discussed by Rajagopalan, J. The facts of this case are briefly as follows: A concern known as Sri Rama Vilas Service, Ltd., had a head office establishment at Madras and a branch at Kumbakonam. A worker called Natesan belonging to the branch was dismissed, but his cause was not espoused by the workers of the branch who were 600 in number. It was taken up by a union of the workers of the Madras head office. Forty workers of the branch were said to have been members of the Madras union. The question which arose for decision was, whether the dispute raised by the Madras union even if it had a membership of 40 workers of the Kumbakonam branch was an Industrial dispute within the meaning of the Section 2(k) of the Industrial Disputes Act. As the dispute was referred as one between the workers of the Kumbakonam branch and the management, Rajagopalan, J., held that even conceding that the 40 workers who were the members of the Madras union must be deemed to have raised that dispute, it would not make it an industrial dispute as laid down in the two earlier Bench decisions of the Madras High Court in Kandan Textiles case 1949 L.L.J. 875 and United Commercial Bank case : (1951)ILLJ1Mad . It was also laid down that to become an Industrial dispute it should have been taken up by a substantial section or an appreciable number of the workmen in the branch. This point came up for consideration before the Supreme Court in Central Provinces Transport Services, Ltd., and Ragunath Gogal Patwardhan : (1957)ILLJ27SC . Venkatarama Ayyar, J., who delivered the judgment, after discussing the three conflicting views relating to this definition, observed as follows at pp. 30 and 31:
The preponderance of the judicial opinion 19 clearly in favour of the last of the three views stated above, and there is considerable reason behind it. Notwithstanding that the language of Section 2(k) is wide enough to cover the dispute between an employer and a single employee, the scheme of the Industrial Disputes Act does appear to contemplate that the machinery provided therein should be set in motion to settle only disputes which involve the right of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the union or a number of workmen.
'Industrial dispute' is defined in Uttar Pradesh Industrial Disputes Act as having the same meaning assigned to it as in Section 2(k) of the Industrial Disputes Act of 1947 and the import of that definition was again considered by the Supreme Court in Newspapers, Ltd., v. Industrial Tribunal, Uttar Pradesh and Ors. 1957 II L.L.J.l, and it was observed at p. 4 that
The object of the Act is the prevention of industrial strife, strikes and lockouts and the promotion of industrial peace and not to take the place of the ordinary tribunals of the land for the enforcement of contracts between an employer and an individual workman. Thus viewed, the provisions of the Act lead to the conclusion that its applicability to an individual dispute as opposed to a dispute involving a group of workmen is excluded unless it acquires the general characteristics of an industrial dispute, namely, the workmen as a body or a considerable section of them make common cause with the individual . workman and thus create conditions contemplated by Section 3 of the Uttar Pradesh Act which is the foundation of the State Governmental action under that Act.
8. Thus it is now well settled law that a dispute between a single or even a few workers and an employer is not an industrial dispute but is only an industrial dispute, that even such a dispute can develop into an industrial dispute if it is espoused by a substantial or considerable section or an appreciable number of the workmen of the concern. This proposition of law is not seriously disputed by both sides in this dispute.
9. But the contention of the management is that this dispute was not raised by a substantial or considerable section or an appreciable number of the working journalists of the ' Hindu ' and that therefore this is not an industrial dispute at all. It is also contended that the Government had no power to refer this dispute, and that as the jurisdiction of the Court depends upon a valid reference, this Court cannot adjudicate this dispute at all.
10. It is therefore necessary to examine the facts and evidence and give a finding on the question whether the dispute referred was an industrial dispute. I shall first deal with the point whether this dispute had the backing of a substantial section or appreciable number of the working journalists on the date of the reference. The original reference was issued by the Government on 17 July 1957 and it was a defective one. It was amended and modified on 20 September 1957 and it has to be found out if on that day which was the crucial date it was an industrial dispute agitated by a substantial number of the working journalists. Between the original Government order and the memorandum there was no change at all in the position relating to the support of the working journalists.
11. On 9 July 1957, Sri R. Narasimhan received a show-cause notice from the editor asking him to explain why he should not be removed from service. On 11 July 1957 a meeting of the working journalists in the service of the ' Hindu ' and who were also the members of the Madras Union of Journalists was convened to consider the situation arising from the show-cause notice served on Mr. Narasimhan. There is some evidence to the effect that the object of this meeting was to consider the explanation to be given by Sri Narasimhan. Thirty-two working journalists attended that meeting and as even prior, to it Mr. Narasimhan had sent his explanation, it was decided to await the further developments in the matter. At that meeting some members considered that they all should send a joint appeal to the editor requesting him to reconsider his proposed action against Mr. Narasimhan. But as some members hoped that as the editor might reconsider and might not take the ultimate step of dismissing Sri Narasimhan, the joint appeal was deferred. On 10 July 1957 about fifteen members of the editorial staff are said to have written a letter to the editor stating that Sri Narasimhan had only committed a mistake, that he should be forgiven and that no serious action should be taken against him. Exhibit W. 1 is said to be a copy of that letter. The receipt of it is denied by the management and there is no sufficient proof that it was actually handed over to the editor. Anyhow nothing much turns upon it, as it was only an appeal for mercy and not an assertion of a demand. Sri Narasimhan was dismissed by an order, dated 12 July 1957, with effect from 14 July 1957 and was given an option to resign his job before that date. On 13 July 1957, a meeting of the 'Hindu' members of the Madras Union of Journalists was held at the union premises to consider the extraordinary situation arising from the service of dismissal order and 34 such members attended that meeting. The proceedings of the meeting marked as Ex. W. 7 (A) are as follows :
The meeting after considering the appeal sent to the managing editor by senior members of the editorial staff, felt hurt that the editor had ignored the appeal and served the order of termination on Mr. R. Narasimhan. The meeting then passed the following resolution :This meeting of working journalists in the 'Hindu' who are members of the Madras Union of Journalists, taking note of the action taken by the management of the ' Hindu ' in terminating the service of Sri R. Narasimhan, sub-editor, completely ignoring the appeal of a representative section of the working journalists that no such drastic action be taken, resolves that all working journalists in the 'Hindu' shall go on strike with effect from 6 p.m. on Sunday, 14 July, and shall continue the strike till such time as the management suspend the order of termination and consider the matter afresh'.
There is also some evidence that before passing the resolution, Mr. S. Viswanathan, an advocate well-versed in this branch of law, was brought to the meeting and his opinion was obtained about the legality of resorting to a strike. The resolution was considered immediately afterwards by the executive committee of the Madras Union of Journalists and they sent a copy of it to the management on 14 July 1957. Exhibit W. 8 is the copy of the letter enclosing the resolution and Ex. W. 8(a) is a statement containing the copy of the resolution and the views of the executive committee. The receipt of these is not denied. Copies of these documents were also sent to the Commissioner of Labour. By Ex, W. 9 the Commissioner of Labour advised the union to give at least a fortnight's notice before going on strike and approach the conciliation machinery of the Government with a view to bring about a settlement of the dispute. He also advised the working journalists to desist from the proposed strike pending the result of the conciliation proceedings. Thereafter the union wrote to the management that they were advising the working journalists to defer the strike action pending the result of urgent conciliation proceedings initiated by the Government. Conciliation proceedings were held by the Personal Assistant to the Commissioner of Labour on 15 July 1957 and he was unable to bring about a settlement. An attempt was also made by the Minister for Labour and even his efforts did not fructify in a settlement. Thereafter the dispute was referred for adjudication to this Court. It is the admitted case of both sides that on the date of the reference there were in the service of this newspaper establishment 89 working journalists excluding Sri R. Narasimhan. As the dismissed workman, whose dismissal had led to the dispute should also be considered as a workman, the total number of working journalists must be taken as 90. The case of the union is that about 70 of these working journalists were members of the union and that the dispute raised by the union must be deemed to be one * agitated on behalf of its members, that therefore 70 out of 90 working journalists must be taken to have supported the claim of Sri Narasimhan and that consequently it is an industrial dispute. It is also argued that 34 members who were in the service of 'Hindu' actually participated in the meeting held on 13 July 1957 and voted in favour of the resolution giving the strike notice, that as the other 'Hindu' members never objected or protested against the resolution or otherwise signified their dissent from it, they must be presumed to have supported it and that consequently all the members who were working journalists of the 'Hindu' must be considered to have backed up the case of Sri Narasimhan and that therefore it is an industrial dispute. Before I consider this case of the union I shall first deal with some of the contentions raised by Mr. Ramamurthi on behalf of the management.
12. His first contention is that the meeting held on 13 July 1957 was not a proper meeting at all as there is no provision in the constitution of the union (marked as Ex. M. 14) for the holding of such sectional meetings of the members of the particular unit of the newspaper industry. It is practically conceded that there is no such provision for such meetings. Still it would not be a meeting opposed to the constitution as there is nothing to prohibit such sectional meetings. It would be only an informal gathering of certain members to decide the course of their action. I do not think it is quite necessary that the working journalists of the 'Hindu' should meet in a formal manner and express their sympathy and decide to take up the cause of Sri Narasimhan. All that is necessary is that there should be some evidence to show that this dispute had the backing of a substantial section of the other employees of the establishment. This object can be achieved by an informal meeting like the one held on 13 July 1957 or by the working journalists signing some declaration expressing their support for the cause or by going on a strike or by expressing their demands and views in some other tangible manner. The constitution provides for general body meeting and the general body, consisting also of the employees of several other concerns, is not the proper authority to raise this dispute which pertains only to the employees of a particular newspaper establishment. It is also urged by Mr. Ramamurthi that there is no reliable evidence to prove that any notice of this meeting was served properly on every working journalist of this newspaper and that it was just possible that a large section of the 'Hindu' members might not have been served with notice at all and might not have been aware of the meeting. It is also stated that if all the 'Hindu' members had been served many of them might have attended the meeting and opposed the resolution and might have even succeeded in getting it rejected and thrown out. It is therefore his argument that the meeting convened without proper service of notice on all 'Hindu' members and a resolution passed at such a meeting should not be considered as a valid expression of the support of the working journalists of this establishment. No doubt, there is no evidence to prove that all the 'Hindu' members of the union were actually informed of the meeting to enable them to attend it. But there is some evidence to show that the notice of the meeting was issued and circulated. Actually fifty per cent of the members were present. Under such circumstances I am inclined to think that It is quite probable that a circular must have been sent to all the members. It is also likely that some were informed orally by others who received the circular. It is also probable that the non-attendance of the other members might have been due to their other engagements or their inclination to abide by what was to be decided at the meeting or on account of their not being such active members. It is difficult to believe that the other members were quite unaware of what was happening. Even though the management has examined a large number of witnesses who were members and who did not attend the meeting it is significant to note that none of them has deposed that he had no notice of the meeting and that had he known of it he would have gone and opposed the resolution. Under such circumstances I am unable to hold that it was not a proper meeting because of the absence of specific evidence proving that every one of the members had prior intimation and invitation to attend.
13. Another main point very seriously pressed by Mr. Ramamurthi is that no such resolution was passed at all at the meeting though there might have been some informal discussions about the propriety or otherwise of going on a strike. This contention is based partly on the evidence of the management's witnesses and partly on the intrinsic evidence said to be found in Ex. M. 7. No doubt a number of witnesses on the side of the management have deposed that no resolution was passed and that no decision was taken. But most, if not all, of them have stated that they left the meeting before it came to a close and they were not present till the end. Even if their evidence is to be construed as amounting to an assertion that no resolution was passed, I am not prepared to believe them as I am inclined to think that having supported the cause of Sri Narasimhan in the beginning they now feel that what they did was not to their ' interest or the liking of their employer and that they should support the management at any cost. They appear to be persons without principles and firm views and seem to be swayed by expediency. It is significant to note that one of the managements' witnesses, namely, M. W. 23, first admitted that the decision to go on strike was taken and that he lifted his hand in support of it. But he added that he was not aware if the resolution was passed as he went away immediately. On the other hand M. W. 39 categorically stated even in his chief-examination that a resolution relating to the strike was adopted. It is needless to refer to the definite evidence on the side of the union relating to the passing of the resolution. Immediately after the resolution was passed it was handed over to the general secretary of the union and soon afterwards on the same night the executive committee of the Madras Union of Journalists met and adopted another resolution giving support to the strike resolution and calling upon all the working journalists and all other newspaper employees in the State to rally behind the employees of the 'Hindu.' This resolution and the strike resolution were actually communicated to the management on the very next day, namely, on 14 July 1957. If there was no such resolution at all, it is not at all likely that events would have happened in this manner. Exhibit W. 7 consists of three parts. The first portion mentions that a meeting was held to consider the extraordinary situation arising consequent on the dismissal of Sri Narasimhan. The second portion contains the signatures of 34 ' Hindu ' members. In the third part it is stated that the meeting passed the resolution and the resolution itself is mentioned. It is the suggestion of Mr. Ramamurthi that the first portion must have been written before the meeting actually commenced, that thereafter all the persons who came to the meeting must have signed in the second portion as and when they entered and that after the meeting terminated Sri S. Ramanathan, the joint secretary, must have written the third portion and signed it without the knowledge and consent of the signatories. It is also. argued by him that if the resolution had been , duly passed the members present would have signed below it acknowledging the fact that such a decision was taken. This argument appears to be a far-fetched one and is not In consonance with what generally happens at a meeting of a large number of persons,' Usually when they attend the meeting they ' sign in some attendance register or paper to show that they were actually present and when a resolution is passed it is recorded and signed by the chairman or the president of the meeting. Normally all the members present do not subscribe their signature below the resolution in token of having voted for it or approved it. No doubt it is admitted that nobody actually presided over that meeting but it is stated by the witnesses of the union that Sri S. Ramanathan actually conducted it. As he was the person who took a prominent part he recorded the resolution and signed below it. Having taken the trouble to meet and discuss the feasibility of giving a strike notice and taking the trouble of sending for a lawyer and obtaining his opinion, it is highly probable that the resolution would have been passed. There is no substance in the comment that the president of the union, though present, did not preside over the meeting as the explanation that he came late appears to be sound. It is also stated that as this resolution was not written in the regular minutes book of the union it proves its spurious nature. There is no force in this criticism as there is positive evidence to show that resolutions of sectional meetings are not entered in the regular minutes book and that only separate records of them are being kept on loose papers in the respective files. On a careful consideration of the evidence I am convinced and I find that the resolution, Ex. W. 7, must have been passed at that meeting.
14. A contention is raised to the effect that this resolution which is relied upon as the only document proving the support of the working journalists prior to the date of the reference, does not mention expressively and in clear terms that the working journalists who attended the meeting supported the cause of Sri Narasimhan and that therefore it is of no use. It is also argued that the sponsors of this resolution might have passed it only as an empty threat or a bluff to make the management reconsider its order of dig-missal and that there-is nothing to show that they were prepared to go the full length of actually raising on a dispute with the management and stand by Sri Narasimhan till the end. Consequently it is urged that this resolution cannot be construed as proving the backing of the persons who voted for it. Though the management had examined a number of persons who attended the meeting, none of them have deposed that the resolution was passed only as an empty threat and that he was not serious about this matter. When the co-workers decide to to go on a strike in case their dismissed comrade is not reinstated, their attitude clearly proves that they solidly support the cause for which strike notice is given. It is not quite essential that the other wokers should mention in express terms and clear language that they support and sponsor the claim of their co-worker. All that is neces is that there should be some evidence to establish that the other workers are behind the dispute and have made a common cause with the aggrieved worker. In my opinion the resolution affords sufficient evidence of the fact that the persons who attended the meeting took up the cause of Sri Narasimhan as they were prepared to incur the displeasure of the management by voting for a Strike notice and if necessary by also staging the strike. There is nothing to show that they were half-hearted in their support of the cause of Sri Narasimhan and I am therefore not prepared to hold that the resolution does not establish that these 31 persons were not quite willing to raise an industrial dispute. It must be held that they clearly supported the cause of Sri Narasimhan.
15. Another contention put forward on behalf of the management is that there is no express authorization by the working journalists empowering the Madras Union of Journalists to raise this dispute on behalf of its members who were the working journalists of the ' Hindu,' that consequently the union had no authority to do so on behalf of the 'Hindu' members and that therefore this dispute agitated by the union is not an industrial dispute. There is not much force in this contention as I am of the view the union is entitled to act on behalf of and in the interests of its members even without an express authorization. A similar contention was raised in a decision in Vidya Vijay Printing Press v. and its workmen 1956 I L.L.J. 690 and repelling it the Labour Appellate Tribunal observed at p. 692 as follows;-
In our opinion, it is not essential that such a resolution of the general body of members should be passed before the union executive could, in the exercise of its normal powers, decide whether the union should or should not espouse the cause of one of its members, who in this case, in their opinion, was victimized. This being an ordinary duty required to be performed by the union in fit cases for the protection of the interests of its members, the executive of the union must be taken to have the right whenever requisite to raise an industrial dispute on behalf of the union unless the executive is expressly required by the constitution of the union to go in such cases to the general body of members for a resolution authorizing it to take such action for the protection of the rights of the members. In consequence the dispute raised by the union in this case must be regarded as an ' industrial dispute' falling within the Act so that the Government had the jurisdiction to refer such a dispute for adjudication and the lower tribunal had jurisdiction to decide the same on the merits.
16. Though Mr. Ramamurthi cited the judgment of Rajagopalan, J., in S.R.V.S., Ltd., v. State of Madras and another 1956 1 L.L.J. 496, authority for the proposition that an express authorization was necessary. I do not find any such principle clearly laid down in it.
17. Another contention raised by Mr. Ramamurthi is that many of the persons who were parties to the resolution, dated 13 July 1957, were only proofreaders and that their support should not be relied upon. It is his argument that there should be some community of interest between the supporters and the person whose cause is sponsored by them and that no such interest exists between proofreaders and Sri Narasimhan who was a sub-editor. It is also stated that the sub editors and reporters who attended the meeting were only a small section of the entire editorial department and that a dispute supported by such a minority cannot be treated as an industrial dispute. In support of this argument he relied upon the recent decision of the Supreme Court in Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate : (1958)ILLJ500SC . Though Mr. Kumaramangalam was vehement in saying that this case does not lay down any such proposition, I do not think he is quite correct in his view. Having read the decision carefully I find that there are observations to the effect that there must be some community of interest between the workmen who raise the dispute and the person whose cause they take up. But it is stated even in this judgment at p. 513 that ' whether such direct or substantial interest has been established in a particular case will depend on its facts and circumstances.' The facts of the case before the Supreme Court were entirely different. There the workmen employed in a tea estate raised a dispute about the discharge of a doctor who was not a workman. It was argued that all the same, they were entitled to do so as the definition Clause 2(k) of the Industrial Disputes Act was wide enough to include a dispute regarding 'the employment or non-employment or the terms of employment or the conditions of labour of any person.' While interpreting the words 'any person' it was observed by the Supreme Court that they should not be given a strictly grammatical or etymological interpretation and that it should be interpreted in a manner consistent with the objects of the Act and in the context in which they were used. It was also held that as the doctor was not a workman, the workers had no right to raise a dispute relating to his discharge. The facts of the present dispute are entirely different. Both the proofreaders and members of the editorial department come within the expression 'working journalists ' and their terms and conditions of service are regulated by the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act. Therefore there is community of interest in the present case and I think the point urged by Mr. Ramamurthi is without substance.
18. Another contention put forward on behalf of the management is to the effect , that an industrial dispute could be raised by a union exclusively consisting of the working journalists of the 'Hindu' and that a general union like the Madras Union of Journalists is not entitled to agitate this dispute. No specific provision of any statute and no precedent or ruling was cited in support of this argument and I am inclined to hold that there is no substance in it. This union acts only as a representative or a mouthpiece of the working journalists. In an industrial dispute, we are mainly concerned with the support of the workers of the concern to which the dispute relates and not the composition or nature of the union. If the workers or a substantial section of them are members of the union, I think it can act on behalf of these members even though it might be a general union. Of course the support given by the members who do not belong to the concern in question would be irrelevant. Even if all the members belonging to the other concerns agitate a dispute, it would not be an industrial dispute unless the workers of the affected concern raise it. If the particular concern's employees do not evince interest in the dispute, it would not be an industrial dispute in spite of the huge support of the workers of other concerns. I think that it was with this point in their mind that a sectional meeting of the 'Hindu' members of the Madras Union of Journalists was held on 13 July 1957 and passed the resolution to give a strike notice. As the dispute had the backing of the working journalists of this concern the Madras Union of Journalists was justified in taking up this matter and it must have done so as the representative of the 'Hindu' members I therefore see no force in the point urged by the management. In practice most of the concerns which employ a small number of workers have no labour unions of their own and their employees generally belong to certain unions consisting of workers of several concerns mostly relating to the same industry. If the point urged by Mr. Ramamurthi is upheld, trade union movement will find it very difficult to thrive in this country.
19. I shall now consider the question whether prior to the reference this dispute had the support of the substantial section of the working journalists of the 'Hindu.' In his chief-examination Mr. R. Narasimhan, who is the dismissed working journalist and the general secretary of the Madras Union of Journalists, deposed that at the time of reference 60 or more working journalists of the ' Hindu ' were members of the union. In his cross-examination he asserted that on 13 July 1957, namely, the date of his dismissal, about 70 working journalists of the ' Hindu ' were on the rolls of the union. Exhibit W. 17 is an extract showing the membership of the ' Hindu' members as on 8 February 1958, the date on which it was filed. It shows that there were 60 members and that 9 persons subsequently resigned and 1 died. The membership register of the union was actually fixed before me but it was subsequently taken away saying that it was required for a dispute before the Madura Labour Court and it was not produced subsequently. On the evidence I am convinced that 60 working journalists were members of the union at the time of the reference. As the union is entitled to act on behalf of its members, this dispute raised by them must be deemed to have the backing of 60 persons. There is no evidence that any of the members disapproved the action of the union or dissociated themselves from this dispute when it was raised. All the members are generally bound by the acts of the union though it might be open to any member to say that he was not in favour of the action taken by the union. No doubt some of the members are now deposing that they are not supporting the course of action taken by the union. But till the middle of November 1957, namely, even for a long time after the dispute was referred for adjudication, none of them had expressed in any manner his disapproval of the union's action in raising this dispute. Under such circumstances, I am inclined to hold that this dispute must be presumed to have been supported by 60 out of the 90 working journalists of the 'Hindu' and I therefore find that it was an industrial dispute agitated by a substantial section of the working journalists and that the reference was valid in law. Granting for purposes of argument that actual membership should not be taken as the basis for reckoning support, even then I think the backing of the 34 persons who attended the meeting on 13 July 1957 is sufficient to arrive at a finding that a substantial or considerable section supported the cause of Sri Narasimhan, so as to convert his individual complaint or grievance into an industrial dispute.
20. Another most important contention raised by the management is that even though it might have been a valid industrial dispute at the time when it was referred, it had subsequently ceased to be such a dispute because many of the supporters have withdrawn their support and that only a small section continue to support it. Before I deal with this contention I shall state the facts on which this contention is founded. On 11 November 1957 when this dispute was posted for enquiry Mr. Ramamurthi informally mentioned his objection that a union exclusively consisting of the working journalists of the ' Hindu' alone would raise this dispute and that the Madras Union of Journalists was not entitled to sponsor the cause of the working journalists of the ' Hindu.' Thereupon I had to explain to him what an industrial dispute was and how it was usually raised and that what was essential was the support of the working journalists and not the union which represented them. There was a general discussion and even Mr. Viswanathan who appeared for the Madras Union of Journalists participated to a large extent in it. Mr. K. Srinivasan, the editor of the 'Hindu,' was present throughout and he appears to have understood what was discussed. He must have come to know that an industrial dispute could be raised only by a substantial section of workers or working journalists. Evidently he must have thought it was better to win over his employees to his side and thus end this dispute. Probably with that object he convened a conference of the working journalists of this establishment on 13 November 1957. Ostensibly the conference is said to have been convened for the purpose of apprising them of the true facts leading to the dismissal of Sri Narasimhan and to ascertain their opinion about the allegation of the union that the dismissal was an act of victimization for trade union activities. A large section of the editorial department consisting of sub-editors and reporters were present at that conference and Mr. Srinivasan appears to have explained his views about the action taken by him in dismissing Sri Narasimhan. According to the evidence of W.W. 2, a subeditor who attended the conference, he seema to have stated that the union was saying that the dismissal was a case of victimization, that it was mala fide and that if they had confidence in him they should support his action. He is also stated to have said ' I want your vote of confidence.' But according to a large number of the witnesses examined by the management he did not ask such a vote of confidence. Thereafter on 14 November 1957 a declaration signed by 48 working journalists of this concern was handed over to the editor and it is marked as Ex. M. 1 and it reads as follows:
We understand that in the dispute that -has been referred to the labour court, following the termination of service of Mr. R. Narasimhan, the charge has been made by the M.U.J. that his removal from service is an act of section of journalists in the ' Hindu' for the charge of victimization for his trade union activities and not a punishment for a grave mistake in his editorial work. This charge really amounts to imputing mala fides to the editor. The M.U.J. has claimed that it has the backing of a substantial section of journalists in the ' Hindu' for the charge that it has made against the editor of the ' Hindu.' We wish to make it clear that this presumption is wholly unwarranted. We have every confidence in the sense of fairness of the editor and we do not support the charge of victimization of Mr. R. Narasimhan for trade union activities made against the editor by the M.U.J.
Exhibit M. 6 is an identical statement signed by another set of 25 working journalists. Evidently Sri Narasimhan and other office bearers of the union who were also present at the hearing of the court on 11 November 1957 wanted to secure a re-affirmation of their support from the persons who voted for the resolution on 13 July 1957 and others who were supporting the cause till then. It is also likely that they might have anticipated the move of the editor and wanted to arm themselves with a declaration for support from the members of the union. So they got a statement typed and obtained the signatures of 41 members. This document is marked as Ex. W. 2. As the signatories of Ex. W. 2 could not state that they never supported the cause of Sri Narasimhan, they gave slightly different declarations stating that they were not aware of the full facts . when they signed Ex. W. 2, that they subsequently learnt them and that they wished to ' make it clear that they never meant to support any allegation of mala fides against the editor and that they wished to express full confidence in him and in any action he might take. It is also stated that their signatures in Ex. W. 2 and support to the resolution should be treated as withdrawn. These declarations are Exs. M. 4, M. 8 and M.9 and the total number of persons who signed them is 55. These 55 persons are those who either attended the meeting on 13 July 1957 or signed Ex. W. 2 or were parties to both. Thus the management obtained declarations practically from all the working journalists in their employment except two or three who continued to stand by Mr. Narasimhan, Armed with these statements the management subsequently filed their additional counter raising the issue under consideration. It is my recollection that on 3 December 1957 when my attention was drawn to these declarations I stated that these documents could not be treated as proofs of their contents and that, the management should at least file affidavits by these persons. Thereafter four identical affidavits marked as Exs. M. 2, M. 3, M. 7 and M. 11 were filed on 26 December 1957. Their relevant contents are as follows:
1. The State Government has referred to this Court for adjudication a dispute alleged to exist between the working Journalists of the ' Hindu' on the one hand and the management of the ' Hindu' on the other regarding the termination of the service of Sri R. Narasimhan who was a sub-editor in the ' Hindu.'
2. The dispute between Sri R. Narasimhan and the management of the ' Hindu' regarding the termination of the service of the former is purely his affair. We have not made common cause with him in regard to that matter or adopted his dispute as our own. We do not either individually or collectively support Sri R. Narasimhan in that dispute or the stand taken by him and the Madras Union of Journalists in that regard.
The total number of persons who affirmed these affidavits is 76, On that day, namely, 26 December 1957, Mr. Ramamurthi wanted me to treat these affidavits as the evidence relating to the preliminary issue and decide it. Thereupon Mr. Kumaramangalam appearing for the union argued that these affidavits should not be used without giving an opportunity to the union to test the veracity and correctness of the statements contained therein by the cross-examination. This was vehemently opposed by Mr. Ramamurthi. I agreed with Mr. Kumaramangalam and directed the management to examine the deponents. Thereupon the tedious process of recording the evidence of a large number of witnesses began. I suggested to Mr. Kumaramangalam that instead of insisting on the examination of all the 76 persons he could give a list of such of them whom he was very particular about cross-examining', as such a course would save the trouble of every one of us. Then the union first gave a list of 31 witnesses whom they wanted to be examined in the first instance reserving their right to give a further list subsequently. On 7 January 1958, Mr. Kumaramangalam filed a memorandum stating that in view of the fact that out of 76 signatories to the affidavits 23 persons were examined and had given evidence regarding the circumstances in which the affidavits were signed the union dispensed with the production of 31 witnesses mentioned in Sch. A to the memorandum and required only the examination of 20 witnesses mentioned in Sch. B. It was also stated in this memorandum that the union accepted the affidavits and letters Exs.M. 1 to M. 9 in respect of the 30 persons mentioned in Sch. A and whose examination had been dispensed with. Accordingly the management examined 18 out of these 20 persons. One of them Sri C.P. Srinivasan was not examined for some reason not mentioned to me and another person, Sri D.K. Gopalaswami could not be examined due to his sickness. Thus 41 working journalists were actually examined by the management for re-affirming the contents of their affidavits and declarations and the evidence of 34 persons was dispensed with by the union accepting their declarations and affidavits. Therefore it must be found that 75 out of 90 working journalists of this concern have given evidence saying that they are not now supporting this dispute. About 45 to 50 of them are persons who were parties either to the resolution or to Ex. W. 2 and their evidence must be treated as a withdrawal of their support even though some of them have deposed to the effect that they never supported the cause, that they were never aware of the resolution and that they were under misapprehension about the true facts when they signed the Ex. W. 2 or that their signatures were obtained in Ex. W. 2 under express promises that it should not be used in the Court.
21. The argument of Mr. Ramamurthi for the management is that as the support of the working journalists is the sine qua non for an industrial dispute, when such support is withdrawn the matter ceases to be such a dispute altogether and that therefore there is no proper dispute in existence any longer requiring the adjudication by this Court. It is also argued by him that as the working journalists who raised this dispute are in a position analogous to plaintiffs in a civil suit when they withdraw their support of the dispute it tantamounts to the withdrawal of the claims by the plaintiffs and that the Court has only to dismiss this dispute. It is also stated that any further enquiry into this dispute would be purely academic in character and that it is not open to this Court to grant any relief.
22. It is the main contention of Mr. Kumaramangalam that this issue should be decided on the facts at the time of the reference as admitted by the management in their additional counter and not by taking into consideration the subsequent events or developments. It is also argued by him that this issue raises a question of jurisdiction which is conferred on this Court by the order of reference and that an issue relating to jurisdiction should be tried only on facts prevailing at the time of the reference. It is also stated by him that if the contention of Mr. Ramamurthi is upheld it would result in great difficulties as an employer may request the Court to try such an issue very often in the course of the pendency of the dispute after winning over to his side a few workers now and then. It is further argued that a dispute which is referred to the Court can only be disposed of in one of three ways, namely-
(1) by the settlement between the parties;
(2) by adjudication on merits;
(3) by deciding that it is not an industrial dispute on the date of the reference.
It is his argument that this Court has no jurisdiction to decide that a dispute which was a valid and proper industrial dispute had ceased to be so after the reference. In support of this argument he relied upon a decision of the Supreme Court in Pipraich Sugar Mitts, Ltd., and Pipraich Sugar Mills Mazaoor Union : (1957)ILLJ235SC . In that case' a dispute which arose before closure was referred for adjudication after the concern was closed and it was argued that as the industry was not in existence and as the relationship between the employer and employees had ceased prior to the reference, the reference itself was not a valid one. Negativing this contention it was observed:
We think that on true construction of Section 3, the power of the State to make a reference under that section must be determined with reference not to the date on which it is made but with the date on which the right which is the subject-matter of the dispute arises, and that the machinery provided under that Act would be available for working out the rights prior to the dissolution of the business.
No doubt the facts of this case are different but the principle laid down seems to be to the effect that the dispute should be adjudicated on the facts which prevailed on the date when the dispute arose without taking into consideration the subsequent events. If for example the concern itself is closed after the dispute is referred for adjudication, it cannot be contended that the dispute had deceased to exist and that consequently it should be dismissed. In the same way even if the support of the workers is withdrawn after the reference it must be held that the matter must be adjudicated as it was a valid industrial dispute when it was originally referred. I am inclined to accept the contention of Sri Kumaramangalam that the crucial date for deciding about the existence of an industrial dispute is the date of reference as admitted by the management in their counter,
The fact that the supporters have withdrawn their support makes no difference and does not convert this dispute into an individual dispute. I am also of the view that once a proper industrial dispute is referred for adjudication the only course open to the labour court is to decide it unless the parties choose to settle it among themselves. I am therefore unable to uphold the contentions of the management that it is no longer necessary to adjudicate this dispute and that it , had ceased to be an industrial dispute.
23. It is also contended by Mr. Kumaramangalam that by the editor convening the conference of the working journalists and explaining his views to them he had exercised undue influence or pressure and that therefore the retraction of the support of those who originally made common cause with Sri Narasimhan should not be taken into account. In view of my finding on the other main point put forward by him it is unnecessary to discuss this contention in detail. There is no sufficient and reliable evidence to come to a finding that the editor exercised any undue influence or pressure or threatened those who attended the conference. No doubt M. W. 32 deposed that when he saw other people signing Ex. M. 6 he thought it better to sign it under the impression that he might lose his employment as he was liable to commit mistakes often. The editor cannot be made responsible for the thoughts of this witness, as there is nothing to show that that he was one of those who at least attended the editor's conference. On the evidence relating to the conference it is not possible for me to find that any undue influence or pressure was used on these working journalists. Evidently as soon as these persons came to know that editor was feeling sour about their supporting Sri Narasimhan's cause they immediately began to withdraw their support, probably feeling that it was better for them to throw their lot on the side of the management rather than the union or Sri Narasimhan. It only demonstrates the lack of grit and trade union spirit, and their over-anxiety to please the employer.
24. Mr. Kumaramangalam argues that when an industrial dispute is pending it is not proper for the employer to convene a conference and express his views and reveal his mind to them. It is his argument that being in a dominating position, if he did so, it would tantamount to pressure or undue influence. In supporting his argument he has not cited any Indian decision relating to conditions prevailing here. Personally I am inclined to think that there would be nothing wrong in an employer talking to his employees during the pendency of a dispute provided he does so in a bona fide manner with a view to apprise them of the real position and to put forward his point of view for their consideration and appreciation. Of course it would not be proper for him to exercise any pressure or throw out any threats, so as to make them give up their demands or abandon their agitation. The question whether he exercised any undue influence or pressure is a question of fact to be ascertained from the facts and circumstances of each case. I have already stated that on a consideration of evidence with regard to the conference I am unable to find that the editor in this case had used any pressure or undue influence. Mr. Kumaramangaiam has relied upon an American decision mentioned in Decisions and Orders of the National Labour Relations Board at p. 591. It does not fully support the proposition canvassed by him. On the other hand it is stated at p. 493:
We are merely holding that interrogation of employees by an employer as to such matters as their union membership or union activities, which, when viewed in the context in which the interrogation occurred, falls short of interference or coercion, is _ not unlawful.
It is therefore, clear that this decision lays down that if the employer questions his employees it would not be unlawful under all circumstances. No doubt the dissenting members of the board took a contrary view. But I regret my inability to follow it. In America the relationship between an employer and his employees is governed by a statute but in India there is no such enactment at all and the case relied upon by Mr. Kumaramangaiam relates to the interpretation of a section of that Act. It would be preposterous to suggest that an employer should not talk to his employees at all during the pendency of the dispute and attempt to convince them of the unreasonableness of their demands or about his difficulties in complying with them. I am, therefore, not inclined to find that the conference convened by the editor or the expressions of his views amounted to the user of undue influence or pressure. I therefore find that this contention of Mr. Kumaramangaiam, is not well founded.
25. In the result, I find that this was an industrial dispute at the time it was referred for adjudication and the fact that a large number of working journalists subsequently retracted their support does not alter the position in law and that this Court is bound to adjudicate this dispute as the order of reference is a valid one and this Court has jurisdiction to enquire into it. This issue is therefore found against the management and I pass a preliminary award accordingly and it shall come into force immediately after its publication by the Government in the Port St. George Gazette.