1. In W.P. No. 3618 of 1978, two questions fell for determination and they are : (i) Whether a demand should be made either directly by the workman or on his behalf on the management to raise an industrial dispute and (ii) whether a demand made by the workman on the management through the conciliation Officer is enough to raise an industrial dispute. Mr. Justice Nainar Sundaram answered both questions in favour of the workman and in the affirmative. Hence, this appeal by the management. It may be stated that the workman brought the writ proceeding and in that proceeding, the management was the 1st respondent while the presiding Officer, Labour Court, Coimbatore, was the 2nd respondent and that the 2nd respondent notwithstanding an industrial dispute having been referred to him by the Government because in the conciliation proceeding, no settlement was arrived at, held that at no stage prior to the present reference, has any demand been made on the management for the workman being reinstated in service, that in the absence of any demand on the management, there is no valid industrial dispute between the workman and the management and that the reference was incompetent. As already stated, the learned Judge set aside the order of the 2nd respondent.
2. The matter is not res integra. The Supreme Court in S. N. Goyal v. Bank of Baroda : (1978)ILLJ484SC .
'Section 2(k) of the Act defines industrial dispute which requires that there should be a dispute connected with the employment or non-employment of terms of employment inter alia between the employers and workmen. The Act nowhere contemplates that the dispute would come into existence in any particular specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not sine qua-non.'
The facts in that case are as follows :
'The appellant was a clerk in the Bank of Baroda. A charge-sheet was served upon him. After holding departmental enquiry, he was dismissed from service. An appeal filed by the workman against the dismissal was dismissed. Thereafter, the matter was referred to conciliation. On failure of conciliation, the Government referred the dispute to the Industrial Tribunal under S. 10 of the Industrial Disputes Act, 1947. The respondent raised a preliminary objection before the Tribunal that as no demand in respect of the appellant was made upon the dispute in existence and therefore, the reference made by the Government under S. 10 was incompetent. The Tribunal upheld the said preliminary objection on the ground that as no demand was made by the Government either oral or in writing before approaching the conciliation officer there was dispute in existence on the date of the reference.'
Immediately, we wish to point out that the facts in the instant case are identical. In May, 1973, certain disciplinary proceedings were initiated by the management against the workman. However, the workman was exonerated of the charge. Nevertheless, as according to the management, till 30th September, 1973, the workman had been absent for 199 days, the management treated him as having voluntarily terminated from service on 1st October, 1973. The workman did not make any demand on the management claiming reinstatement. On the other hand, almost two years thereafter, i.e., on 3rd November, 1975 along with other workmen concerned through their Union made an application to the Labour Officer, Coonoor, complaining that the management refused to accept the said workman without assigning proper reason and proper inquiry, and demanded reinstatement with back wages and continuity of service. As already stated, the conciliation failed and the said officer submitted his failure report with regard to the present workman on 30th November, 1976 to the State Government. On the basis of the said report, the State Government by G.O.Rt. 458 Labour and Employment dated 28th February, 1977 referred the dispute to the 2nd respondent which was numbered as I.D. 44 of 1977 on the file of the 2nd respondent. Thus, the questions posed in this writ preceeding are answered in favour of the workman. As a matter of fact, the learned Judge followed the above decision of the Supreme Court. Further, a Division Bench of this Court in Ramakrishna Mills Ltd. v. The Govt. of Tamil Nadu and others : (1984)IILLJ259Mad rejected the contention that because there was no demand on the management for reinstatement and because there was no refusal by the management, there was no industrial dispute, but held that there cannot be a doubt that for the existence of an industrial dispute, there ought to be a demand by the workman and a refusal to grant it by the management; how the demand should be raised, should not and could not be a legal notion of fixity and rigidity; the grievance of the workmen, and the demand for its redressal must be communicated to the management; the means and mechanism of communication adopted are not matters of much significance so long as the demand is that of the workman and it reaches the management; a written demand on the management is not in all cases a sine-quo-non and there must arise a dispute or difference within the meaning of S. 2(k) or S. 2(a) of the Industrial Disputes Act and the demand as such need not in all cases be directly made by a representation to the management and the demand could be made through other sources also. It is true that the learned Judge followed the Judgment under appeal reported in C. ., : (1981)IILLJ102Mad . But still it is a judgment of a Division Bench of this Court and we shall necessarily respect the same unless it is over-ruled or is contrary to the later dictum laid down by the Supreme Court. We may add that if we were constrained to differ, then the proper course is to refer to a larger Bench. Fortunately for us, there is no occasion for such a situation. For, it is enough at this stage to point out that the Division Bench also followed the Supreme Court in S. N. Goyal v. Bank of Baroda (supra).
3. None-the-less, learned counsel for the appellant made a vain attempt to contend that unless there was a demand by the workman on his behalf made directly on the management and unless such a demand was not complied with by the management, there would not come into existence an industrial dispute as per the combined reading of S. 2(k) which defines industrial dispute and S. 12(1) of the Industrial Disputes Act (herein-after referred to as the Act). Industrial dispute means any dispute or difference between employers and employees or between employers and workmen, or between workmen and workmen which is connected with the employment or the terms of employment or with the conditions of Labour of any person. S. 12(1) provides, where any industrial dispute exists or is apprehended, the Conciliation Officer may or where the dispute relates to a public utility service and a notice under S. 22 has been given, shall hold conciliation proceedings in the prescribed manner. It is useful to notice that S. 12(5) provides that if on a consideration of the report referred to in sub-s. (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such references; (the rest is omitted as not relevant for the present occasion). According to the learned counsel for the appellant, S. 12(1) Stipulates the existence of an industrial dispute so as to enable the Conciliation Officer to take seizin of such control and that as there was no demand by the workman on the management, there did not exist an industrial dispute which could be taken cognisance of by the Conciliation Officer under S. 12. We are unable to agree, because according to the definition of Industrial dispute under S. 2(k) of the Act, any dispute between employers and workmen is an industrial dispute. When the management dismissed the workman, in our considered opinion, there automatically arose a dispute or difference between the management and the workman. Thus, according to the plain meaning of the definition of industrial dispute, the dispute or difference arose between the management dismissing the workman by virtue of the management dismissing the workman from service. According to S. 12 of the Act, the matter can be referred to conciliation where any dispute existed or was apprehended. In this case, the dismissal pre-se created a dispute or difference between the management and the workman and is such a case, if the matter is referred to conciliation on behalf of the workman by the union, the provision enables the conciliation officer to exercise his jurisdiction as contemplated under the said provision. It is nowhere stipulated in the Act particularly in S. 2(k) and the existence of the dispute as such is not enough, but then there should be a demand by the workman on the management to give rise to an industrial dispute. Then, the argument advanced by the learned counsel for the appellant is hardly tenable.
4. Yet another point pressed into service at the instance of the management is that there was a delay of two years between the date of dismissal and the date of reference for conciliation to the Conciliation Officer and that this lack on the part of the workman will disentitle him from claiming the benefit under the Act. We have to point out that this ground of attack in the manner it was presented before us, was not raised in the counter affidavit or before the learned Judge. As long as it is not the case of the appellant that if the 1st respondent were directed to be reinstated, it would cause hardship to the management, we are of the view that the latches particularly under the Industrial Disputes Act will not ipse facto bar the 1st respondent from seeking his relief under the Act.
5. In the result, we find that the learned Judge was right in his conclusion and therefore, the appeal deserves to be dismissed. Accordingly, the writ appeal is dismissed with cost. Counsel fee Rs. 500/-.