1. This writ petition is to quash the award of the Labour Court made in I.D. No. 41 of 1969 dated 30-8-1976.
2. The matter had a chequered history as would be seen from the following narration : By an order of reference under S. 10 of the Industrial Disputes Act. hereinafter referred to as the Act, in G.O.R. No. 104, Labour Department, dated 29-4-1969, a reference was made to the Labour Court for adjudication of a dispute relating to the non-employment of seven workmen by name (1) V. Kumaraswami (2) T. R. Ramu Pillai, (3) K. Kannian, (4) G. Baluswami, (5) A. Ramdoss, (6) S. K. Palaniandi and (7) R. Kaliaperumal. Out of the seven persons, the issue relating to the non-employment of Kumaraswami was held to be not properly referred to for adjudication by an order of this Court in W.A. No. 472 of 1971. Out of the remaining six, the Labour Court rejected the claim of Nos. 2, 4 and 5 mentioned above. With reference to the rest of the three, the Labour Court under impugned award directed the reinstatement with back wages and it is to quash the same, the present writ petition has been preferred.
3. It was the contention of the workmen in their claim statement that their services came to be terminated all of a sudden with effect from 1-11-1962. According to the union, which espoused their cause, the said termination was in violation of the principles of natural justice. It was also an act of victimisation. On behalf of these three workmen there were also complaints under S. 33A of the Act. But those complaints were dismissed as not maintainable. The management, the writ petitioner, pleaded that these three workmen were engaged purely on a temporary casual daily basis. Therefore, there was no continuity of employment or obligation on their part. It was also pleaded that Palaniandi did not come to work from duty from 14-10-1962, while the other two stayed away from duty from 23-10-1962. One of the important contentions that was raised was that no valid demand was ever made and that the union, which espoused the cause of the workmen, did not have the required capacity to do so. The contentions of the management were rejected and an award was passed in the terms stated above and is why the present writ petition.
4. Mr. M. R. Narayanaswami, the learned counsel for the petitioner urges that two questions that arise for consideration in this case are :
(1) Whether there has been a proper demand. Even if there was a proper demand, did it have the substantial backing of the union; and
(2) Whether the secretary was authorised by the substantial backing of the number of the workmen of the union.
If these two questions are answered against the management, then on merits, it is contended, that the Labour Court had not considered the plea of abandonment. Then again with regard to the relief, having regard to the fact that the termination of the services took place as early as 1962, to direct reinstatement is not proper and therefore, it is contended that the relief could be moulded by this Court to suit the facts of the case. Elaborating this, it is argued that Ext. W2 is stated to be a demand dated 9-11-62. That is signed by the secretary of Motor Labourers Union. There is absolutely nothing on record to show that these workmen were members of the union. This assumes a great importance in view of the fact that the dispute arose prior to the introduction of S. 2A of the Act. In support of this submission, reliance is placed on Visalakshi Mills Ltd. v. Labour Court, Madurai and others, : (1962)IILLJ93Mad . Bombay Union of Journalists and others v. Labour Court, Madhurai and others, : (1962)IILLJ93Mad , Bombay Union of Journalists and others v. The 'Hindu', Bombay and another, : (1961)IILLJ436SC and the Kandan Textiles Ltd. v. The Industrial Tribunal, Madras and others, 1949 II M.I.J.789 at page 794. What the Labour Court has done in the instant case as it is was of no consequence after the introduction of S. 2A. This approach itself is wrong. Reliance is also placed in this record on the unreported judgments in the Managements of Mettur Chemicals & Industrial Corporation Ltd., Mettur Dam, Salem District v. The Presiding Officer, Labour Court, Coimbatore (W.P. No. 5880 of 1975) and also in W.P. Nos. 3695 of 1978 and 849 of 1978. As a matter of fact, it is the contention of the petitioner that Ext. W2 itself was never sent. Without prejudice to that contention, all these points are raised including the point that the secretary had no authority to write Ext. W2. In so far as the plea of abandonment had not been considered by the Labour Court, that would constitute a clear error resulting in failure to exercise Jurisdiction. On the question of relief, the learned counsel cites the decision reported in Management of Monghyr Factory of I.T.C. Ltd. Monghyr v. Labour Court, Patna & others, : (1978)IILLJ354SC and then contends that the Supreme Court itself was of the view that the relief could be moulded to suit the case. It is also the submission of the learned counsel that under the writ jurisdiction what the Labour Court could do, this Court can very well do. The decision in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, : (1980)ILLJ137SC , is cited in this behalf.
5. As against this Mr. G. Venkataraman, the learned counsel for the second respondent would say that in the instant case notice, enquiry proceeding and the show-cause notice under S. 33A, which are marked as Ext. W26 to 28 would themselves constitute demand. In support of this, reliance is placed on Sri Rajagopala Transporters (P) Ltd., Tiruchirapalli-3 v. The presiding Officer, Labour Court, Madurai and others, 1972 1 L.L.J.643. Even otherwise, in so far as this particular aspect of the matter that no demand was ever raised, it would constitute constructive res judicata. Whatever it may be, if at the stage of conciliation, a demand is made, it is enough. Vide the decisions reported in Dhanapal Bus Service (P) Limited v. K. R. Venkatesan and others, : (1976)ILLJ15Mad , Workmen of the Sri Ranga Engineering Works, Madras v. Principal Labour Court, Good Year India Ltd., Jaipur v. Industrial Tribunal, Rajasthan, Jaipur and others, 1969 I LabIC444 . In the instant case, undoubtedly the statement Ext. W18 was filed before the conciliation officer. That would be enough demand. Even though the dispute was not started by majority of workmen, it would still be a dispute under S. 2A of the Act and what matters is the substance and not the form as laid down in T. V. Sundaram Iyengar & Sons v. State of Tamil Nadu and others, : (1970)IILLJ445Mad , paragraph 7. Where a union raises a dispute, the representative capacity of which cannot be questioned after the introduction of S. 2A of the Act is the purport of the ruling reported in Algu Ram v. State of Punjab and others, . It has also been held in Rustom and Hornsby (I) Ltd. v. T. B. Kadam, 2A will apply to disputes which arose earlier.
6. Much cannot be made of the fact that the order of reference says that there were disputes between workers and management. Here again what has to be looked at is the substance as reported in national Asphalt Products Constructions Co. v. N. M. Kothari and others, : (1977)IILLJ377Bom and T. V. Sundaram Iyengar & Sons v. State of Tamil Nadu and others, : (1970)IILLJ445Mad . On merits the argument is that there is no proof by management that there was an abandonment. Therefore, failure to consider the same will not vitiate the order.
7. Once the plea of the management is rejected, the only other course that is open to the Labour Court was to direct reinstatement. If it was the case of the management that the arguments proceeded on that basis, then there should have been a specific pleading in this behalf. It is well settled, as seen on Management of Monghyr Factory of I.T.C. Ltd., Monghyr v. labour Court, Patna and others, : (1978)IILLJ354SC that mitigation of damages would not be available in the sphere of industrial law. Mr. M. R. Narayanaswami in reply would state that some of the decisions cited on behalf of the petitioner did form consideration in W.P. Nos. 5880 of 1975 and also in W.P. No. 3695 of 1978 and prior to conciliation there must be a demand in the ratio of these decisions and the Labour Court had completely misdirected itself on this aspect.
8. I first consider the question whether there was any proper demand to constitute an industrial dispute. In this case the receipt of Ext. W2 was at first denied by the management. Nevertheless, later on the arguments proceeded on the basis that it had been received. Exhibit W2 was addressed by the Secretary of Motor Labourers Union. There is no evidence on record to show that the workmen were members of the union and secretary was authorised to raise the demand on behalf of these workmen. It is true as laid down in earlier cases of this Court in Visalakshi Mills Ltd. v. Labour Court, Madurai and others, : (1962)IILLJ93Mad ; Bombay Union of Journalists and others v. The 'Hindu' Bombay and another, : (1961)IILLJ436SC and the Kandan Textiles Limited v. The Industrial Tribunal, Madras and others, 1949 II M.L.J.789, that there must be a demand which, if not considered, alone will raise a dispute. This is also the purport of my ruling in W.P. No. 3695 of 1978. If the matter thus stood at that stage, I might be inclined to accept the contentions of the management. On the contrary what is to be noticed in this case is that the order of reference was made on 29-4-1969 and before that there was a demand, to which demand, the management would not agree. Therefore essentially speaking, this is a matter of substance and not a mere form, as laid down by National Asphalt Products Constructions Co. v. N. M. Kothari and others, : (1977)IILLJ377Bom . Paragraphs 4 and 8 may be extracted :
'4. Mr. Ramaswami appearing for the petitioner-company contends that the finding given by the Labour Court that the dispute was espoused by the other workmen of the company is contrary to the evidence on record inasmuch as on the date of reference, viz., 24-9-1968, there was no more than five workmen of the company who were the members of the second respondent-union. It is, therefore, apparent that the cause of these three workmen was not espoused by a substantial number of workmen which alone could have made it an industrial dispute within the meaning of clause (k) of S. 2 of the said Act.
8. We are further of the view that even assuming that the dispute was not supported by any of the other workmen, it was still capable of being referred to adjudication under S. 10 of the said Act, since it was an industrial dispute within the meaning of S. 2A of the said Act. The contention raised by Mr. Ramaswami relates more to the form than to the substance of the dispute, because after the amendment of the Industrial Disputes Act by addition of S. 2A, which came into force on 1-12-1965, the distinction between a dispute or difference arising out of discharge, dismissal, retrenchment or termination of the services of an individual workman in any other manner, raised by the workman concerned and that raised on his behalf by other workmen, has no significance, so far as its reference and adjudication is concerned. It must be remembered in this connection that neither clause (k) of S. 2 nor any other provision in the said Act mentions a union of workmen or other workman in connection with the raising of a dispute. It is only the interpretation placed by the Courts on the definition Industrial Dispute given in the said clause (k) which requires that the dispute to be an industrial dispute should be a collective dispute and not an individual dispute. This was necessary because disputes between a workman or workmen on the one hand and the employer on the other, for the resolution of which the Act has been placed on the Statute book, may be of various kinds. Such disputes may relate to the general conditions of service in which all the workmen are interested or it may relate to the termination of service of a workman or workmen, in which others are not interested. If a dispute relating to the general conditions of service is allowed to be raised by an individual workman, that would defeat the very purpose and the object of the said Act, and it was to prevent this, that although the Act did not in so many words state so, the definition of the expression 'industrial dispute' in the said clause (k) was interpreted to mean collective dispute espoused by a substantial number of workmen, as distinguished from individual dispute, unsupported by other workmen. Since this definition of industrial dispute was likely to lead and did lead to hardship in cases of disputes of individual workmen arising out of termination of their services, it was necessary to make provision for raising of such disputes by individual workman, although the same were not supported by other workmen. It was to meet this need that S. 2A was introduced in the said Act. It must also be remembered in this connection that by the said S. 2A, what an individual workman is allowed to raise as an industrial dispute is only a dispute arising out of the termination of his services by either of the various modes. He cannot raise any other dispute as an industrial dispute. This being so, all that was done by S. 2A was to widen for the purpose and to the extent discussed above the definition of 'industrial dispute' given in clause (k) of S. 2 of the said Act. Therefore, whether the dispute referred to in the order of reference is an industrial dispute within the meaning of clause (k) of S. 2, or S. 2A of the said Act, is of no consequence so far as the power on the Labour Court to adjudicate thee same in service is concerned. In one case it will be the workmen of an employer collectively who will be a party to the dispute and in the other case, it will be the individual workman of workmen concerned. So long as the dispute is one arising out of the termination of service of an employee in one of the various manners, it will constitute an industrial dispute capable of being referred to adjudication under S. 10 of the said Act.'
These extracts fully support the stand of the workmen. Therefore, I do not think that I should embark upon the question as to what would be the correct interpretation of S. 2A of the Act, since it is very clear in this case that before the reference was made, there was a valid demand and the reference in this case was made in G.O.R. No. 104, Labour Department, dated 29-4-1960. Therefore, on the first aspect of the question, I reject the arguments of the management that there has not been any proper demand. In view of this finding, it is unnecessary for me to refer to the number of authorities relied on by the other side.
9. On the plea of abandonment, if a look is made at paragraph 10 of the impugned award, I find that the Management's case has to be rejected, because there was no proof concerning this. As there was lack of proof, the Labour Court could not consider this plea. No blame can attach; nor is the order vitiated in view of that.
10. Turning to the relief, the Labour Court says in paragraphs 18 and 19 as under :
'18. Point No. 7 : The ipsi dixit of M.W. 1 which under the background of discussion of his evidence in point No. 1 and the long litigation between the parties since 1962, cannot be accepted relating to the fact that the petitioners are gainfully employed elsewhere.
19. Point No. 8 : In the result an award is passed holding that the non-employment of the 3rd petitioner, and 6th and 7th petitioners are not justified and they are ordered to be reinstated in the respondent's concern with continuity of service, backwages. The reference in respect of 2nd petitioner, 4th and 5th petitioners is dismissed in view of the finding in Point No. 4. No costs.'
11. In Management of Monghyr Factory of I. T. C. Ltd. Monghyr v. Labour Court, Patna and others : (1978)IILLJ354SC in paragraph 22 it was observed thus :
'22. The High Court while affirming the order of the Labour Court in this regard did refer to some of the relevant decisions of this Court and correctly enunciated the principles. But it seems to us that it felt fettered in treating the facts referred to in those cases as if they were exhaustive examples of the circumstances under which reinstatement could be ordered. In that view of the matter the High Court, on comparison of the facts of the present case did not feel persuaded to travel outside the limits of those facts. But it should be remembered, as observed in Punjab National Bank case, : (1959)IILLJ666SC , that every case has to be judged on its special facts. In the present case the service card of the employee shows that he had committed several faults in the past and was sometimes warned, sometimes suspended and sometimes reprimanded for all those omissions and commissions. In the incident in question be was clearly guilty of neglect of duty in putting wrong, slides, although they were wrongly supplied to him while packing the cigarettes on the packing machine. Even shortly before the incident in question, as pointed out to the High Court on behalf of respondent No. 3 himself, he was once warned for absence from proper place of work without permission and was suspended for three days for an act subversive of discipline before he was dismissed in June, 1966. We were also informed by the management that respondent No. 3 has superannuated, according to them in December, 1972. The fact that he has superannuated was not disputed by Mr. Santosh Singh. What was, however, asserted on his behalf was that he had superannuated not in December, 1972, but about two years later. At the time of the hearing of the appeal, the management offered to pay a very reasonable amount of compensation and all sums of money due to the workman on account of gratuity and provident fund. We think on the facts and in the circumstances of this case it is not a fit case where the High Court ought to have sustained the order of reinstatement as passed by the Labour Court. We, accordingly, direct that in lieu of reinstatement, respondent No. 3 will be entitled to get a compensation of Rs. 30,000 which will roughly speaking, include almost all sums of money payable to the workman such as basic pay, dearness allowance, etc., etc., for a period of about five years. Out of the said sum of Rs. 30,000 total amounts of Rs. 14,350 are said to have been paid by the appellant to respondent No. 3 in pursuance of the interim orders made by the High Court and this Court. The balance of Rs. 15,750 on account of compensation is to be paid. Adding to that the sums of gratuity Rs. 8,852 and provident fund Rs. 2,451 the total amount payable comes to Rs. 27,053. The management has also agreed to make an exgratia payment of Rs. 2,947. The total sum payable by the management to the workman concerned comes to Rs. 30,000 over and above the sum or Rs. 14,250 already paid. We direct the appellant (and at the time of the hearing of the appeal it has agreed to do so) to pay the said sum of Rs. 30,000 to respondent No. 3 within a month from to-day.'
It is also now beyond doubt, in view of the decision of the Supreme Court reported in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, : (1980)ILLJ137SC , that whatever relief the Labour Court could have ordered in the circumstances of the case, the same relief could be ordered by this Court exercising writ jurisdiction under Art. 226 of the Constitution of India. Examined in this light, I should think that the order of reinstatement of the three workmen world be really harsh on the management having regard to the long drawn out litigation. In this way, in my view, the law would come to the rescue of the management. In view of this I should think that the interests of justice will be met by directing a payment of Rs. 10,000 to each of the workmen excluding the payment already made.
12. The writ petition is dismissed except in relation to the modification relating to the relief. No costs.