(1) The petitioner, the employer, had occasion to reprimand one of his employees. The employee turned abusive. The employer placed the worker under suspension and gave a memorandum of charges to him. Thereafter, the petitioner addressed the second respondent-Union asking the secretary of the Union to be present at the enquiry into the charge. The secretary did not reply immediately but sometime later declined to be present stating that it was a matter of domestic concern. In the meantime, apparently, on the complaint of the worker that he had not been given employment, the Union contacted the Labour Officer. Finally, the matter reached the Government and two questions were referred for adjudication to the Labour court. Before the Labour court, however, the petitioner did not appear. There was an ex parte award directing the reinstatement of the worker and awarding back wages to him from the date of his non-employment. This order was passed on 31-10-1962.
The petitioner has come to this court with the petition under Art. 226 of the Constitution in December 1963 and seeks the issue of a writ of certiorari to quash the order of the Labour Court. It is suggested in the affidavit accompanying the petition that the petitioner was not aware of the date of the hearing, and that though he attended the penultimate hearing, he was under the impression that he would receive a fresh notice with regard to the next hearing. This is given as the reason why he was not present on the date of the final hearing. It is unnecessary to refer to various grounds set out in the affidavit accompanying the petition. It will be sufficient to deal with the grounds as have been pressed before me in the course of the arguments in the writ petition.
(2) In the counter affidavit filed on behalf of the Union, it has been asserted that though the matter was brought before the Labour Officer by way of conciliation proceedings and the labour officer issued several notices to the petitioner, the petitioner did not care to appear and put forward whatever he had to say in connection with the enquiry before the Labour Officer. It is also stated that when the matter reached the Labour Court, the Labour Court issued several notices to the petitioner but could elicit no reply. It is further stated that the management did not file any counter statement at all in response to the notice issued by the Labour Court. It is accordingly contended that the award was rightly passed ex parte and that the petitioner has only himself to blame for deliberately failing to participate in the enquiry. It is claimed that the order of the Labour Court does not suffer from any invalidity which justifies interference therewith.
(3) One of the contentions advanced by Mr. Venkataraman, learned counsel for the petitioner, is that this is really an individual dispute arising out of the conduct of an employee, that it does not relate to the terms of service, that no victimisation or unfair labour practice was alleged and that being so the very reference itself is improper. It is further contended that the second respondent-Union cannot represent the worker. It is urged that the Labour Court has not found that there is victimisation and that in the circumstances the order reinstating the worker is not justified. It is contended also that the worker was suspended pending the enquiry, that it was not a case of non-employment at all and that his suspension not being in the nature of punishment inflicted upon the worker, it could not be brought for adjudication as in the present case.
(4) In so far as the last point is concerned, whether or not suspension was a measure of punishment I am really unable to see how an industrial dispute cannot arise out of such a direction made by the management. Even suspension amounts to non-employment of a worker and in relation to such non-employment alleged to be devoid of valid reasons, a dispute can be raised. So long as the dispute does not remain an individual dispute but assumes the form of an industrial dispute in which the general body of the workers display an interest, then, it cannot be said that a reference would not be proper. In this case, it is not denied by learned counsel on behalf of the management that all the seven employees are members of the second respondent-Union and when the second respondent-Union took up the matter before the Labour Officer for conciliation, it obviously, offered clear indication that the Union represented the body of the workers in sponsoring the cause of the employee. Though a dispute may start as an individual dispute, it assumes the form of an industrial dispute by the backing which the dispute receives from other employees of that concern or by a Union in which such employees are members. In this case there is no doubt that this was the position and the contention that there was only an individual dispute which remained as such right through cannot possibly be accepted.
(5) This has been fully explained in the decision of the Supreme Court in Bombay Union of Journalists v. The Hindu Bombay, : (1961)IILLJ436SC . There their Lordships have pointed out that a dispute between an employer and a single employee cannot per se be an industrial dispute but it may become one if it is taken up by the Union or a number of workmen. They also say that in each case in ascertaining whether an individual dispute has acquired the character of an industrial disputes, the test is whether at the date of the reference, the dispute was taken up or supported by the Union of the workmen of the employer against whom the dispute is raised by an individual workman or by an appreciable number of workmen. The test is fully satisfied in the present case for the union represents all the workers employed by this particular management. To a similar effect is the decision in Employers, Express Newspapers Ltd., Madras v. Labour Court, Andhra Pradesh, : (1962)IILLJ200AP . It is unnecessary to refer to details of this decision.
(6) That there was no earlier dispute and that no victimisation was alleged or proved are matters which are not germane to the question raised before me. I am really unable to follow the precise scope of the argument that there can be no reference in so far as the direction of reinstatement is concerned unless victimisation is alleged. In order to acquire the character of an industrial disputes, it is not always necessary that an allegation of victimisation should form the foundation of the charge. Any act of the employer which involves non-employment of a worker or violation of the terms of service upon which he is employed can give rise to an industrial dispute. Victimisation is no doubt alleged in proper cases but it is not a necessary incident to each and every industrial dispute which an employee raises against the employer.
(7) Several allegations of fact have been made in the affidavit accompanying the petition and the petitioner seeks to justify his claim that his failure to appear before the Labour Court during the conciliation proceedings or before the Labour Court leading to the ex parte award against him cannot conclude the question against him. I agree that the mere fact that he did not participate in that enquiry does not prevent him from raising such questions as would involve either an error of law apparent on the face of the record or error or jurisdiction in the award of the Tribunal. He cannot certainly be permitted at this stage to canvass questions of fact which can validly be decided even in the absence of the party, by the Tribunal competent to decide such issues.
(8) Coming to the question whether the Tribunal was right in its finding that the employer was not justified in refusing to employ the worker, it appears to me that upon the facts presented to the Tribunal it was justified in coming to the conclusion as it did. Mr. Ramaswami, learned counsel for the second respondent-Union points out that though the petitioner-management purported to deliver a memorandum of charge to the employee, the management took no steps whatsoever to proceed further with the charges and decide whether the employee was to be dealt with or not in the domestic forum. The employer took shelter apparently under the plea that the worker had approached the Union and the Union had contacted the Labour Officer. But the fact remains that the employer did not choose to put forward his contention or his side of the case even before the Labour Officer. In those circumstances, there is no merit in the contention that the Tribunal did not appreciate the evidence properly in coming to the conclusion that the employer was not justified in dealing with the employee and placing him under suspension.
On the question of reinstatement, which has been ordered by the Labour Court, the Supreme Court has held in M. L. Bose and Co. (P) Ltd. v. Its Employees, 1961 II LLJ 107: AIR 1961 SC 1198 , that even in extreme cases where the employer has, subsequent to the dismissal of the workmen, entertained a fresh set of employees it is no answer in denial or the relief of reinstatement to the dismissed employees in proper cases. They observe that however much the Court may sympathise with the difficulties arising from such a position, in the case of wrongful or illegal dismissal the worker is entitled to claim reinstatement. It does not appear from the decisions bearing on the point that it is only in cases where unfair labour practice or victimisation is alleged or proved that reinstatement can generally be ordered. Upon the findings recorded by the Labour Court, the direction for reinstatement flows almost automatically.
(9) It is lastly contended that the Labour Court has given retrospective operation to its award, and has in fact directed that the award will come into force on the date of its publication which is opposed to the provisions of the Act. According to learned counsel, an award becomes enforceable only on the expiry of one month after the date of the publication of the award. The direction that the award will come into force from the date of the publication is attacked as erroneous in law. It seems to me that this contention is not correct. It is open to the Labour Court to make the award effective even from an anterior date. But the enforceability of the award depends upon the provisions of the statute. The distinction between the operation of the award and its enforceability has been brought out in more than one decision. In Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. State of Mysore, AIR 1958 Mys 85, the learned Judges of the Mysore High Court have held that the Tribunal has jurisdiction to give its award retrospective operation. But the enforceability of the award is from the date as provided in the statute. The observation of the Labour Court in the instant case that the award will come into force from the date of the publication does not really offend the relevant provision in the statute.
(10) It seems to me that none of the contentions pressed on behalf of the petitioner is sound. The petition is dismissed, but in the circumstances there will be no order as to costs.
(11) Petition dismissed.