B.N. Banerjee, J.
1. A number of industrial disputes between River Stream Navigation Co., Ltd., and India General Navigation and Railway Co., Ltd. (respondent 3) and their workmen represented by (i) Paschim Banga Mazdoor Congress (respondent 4) and 00 Inland Steam Navigation Workers Union (respondent 5) were referred by respondent 1, State Government, in exercise of its powers under Section 10 of the Industrial Disputes Act, to the fourth industrial tribunal for adjudication. The order of reference bears the date 23 November 1960.
2. The respondent 6, Joint Steamer Companies Employees' Union, claims to be a trade union of a section of the non-clerical staff of respondent 3 companies, numbering about 287. On 16 January 1961, workmen numbering 171 (including the two petitioners), who are members of the respondent 6 union, filed an application before the fourth industrial tribunal praying that they be allowed to file written statement and participate in the adjudication represented by their own lawyer or a representative of respondent 6 union.
3. The application was opposed by respondent 5 union but was consented to by respondent 3 companies.
4. The fourth industrial tribunal rejected the application being of the opinion:
(a) The workers' union is apparently an old anion existing for a very long time. It is not at all clear to me how the workers' union representing the majority of the workmen can be said to be not competent enough to protect the interest of the workmen as a whole.
(b) In this context, I have considered the affidavit sworn by Kestopada Ghosh, who is the general secretary of the workers' union. In Para. 8 of the affidavit It is alleged that pending the proceeding, the employees' union and the companies have entered into a so-called agreement to defeat the interest of the workmen. There is no counter-affidavit filed by the employees' union as against this allegation. which is apparently of considerable importance. Prima facie, it appears to me that the workers' union made party in the order of reference is competent to represent the cause of the entire body of workmen in the proceedings before me, as the said unions represent the vast majority of the workmen. it is quite possible that there would exist a large number of unions in a particular industry. If any dispute arises as between workmen and workmen as to the representative character of the rival unions, such a matter does not constitute an industrial dispute. Besides this union seeking representation, has within it only a small number of workmen. This dispute as referred to me for adjudication cannot be said to be in any way connected with any dispute as between workmen and workmen over any such matter. I cannot, therefore, enter, within the scope of this reference, into any question as to any rivalry existing between two anions.Finally, therefore, apart from the fact that I cannot amend or add to theorder of reference and make any addition of party union, la the order of reference, the employees' anion failed to make out a case justifying their claim to file written statement. These 171 workmen cannot, therefore, claim any separate representation in course of this proceeding under Section 36 of the Industrial Disputes Act, either by employees' union or by any lawyer as chosen by them.
5. The propriety of the order is being disputed by two out of the 171 members of respondent 6 union in this rule.
6. The law on the point came up for consideration before the Supreme Court twice, once in the case of Manager, Hotel Imperial v. Chief Commissioner, Delhi, and Ors. 1959--II L.L.J. 553 and again in the case of Ram Prasad Viswakarma v. Industrial Tribunal, Patna 1961--I L.L.J. 504.
7. In the case of Manager, Hotel Imperial 1959-II L.L.J. 553 (supra), Wanchoo, J., observed:
The objection, however, is that the words 'as represented by the Hotel Workers' Union, Katra, Shahansnahi, Chandni Chowk, Delhi,' which appear in the order of reference made it incompetent, inasmuch as the union could not be made a party to the reference. We are of opinion that this objection is a mere technicality, which does not affect the competence of the order of reference. The fact remains that the dispute which was referred for adjudication was between the employer, namely, the management of the hotel, and its employees, which were mentioned as its workmen. The addition of the words 'as represented by the Hotel Workers' Union, Katra, Shahansnahi, Chandni Chowk, Delhi,' was merely for the sake of convenience so that the tribunal may know to whom it should give notice when proceeding to deal with the reference. That, however, did not preclude the workmen, if they wanted to be represented by any other union, to apply to the tribunal for such representation or even to apply for being made parties individually. Section 36 of the Act provides that a workman who is party to a dispute shall be entitled to be represented in any proceeding under the Act by
(a) an officer of a trade union of which he is a member; or
(b) an officer of a federation of trade unions to which the trade union, of which he is a member, is affiliated; or
(c) where the workman is not a member of any trade union, by an officer of any trade union connected with, or by any other workmen employed in the industry in which the workman is employed.
The fact therefore that in the order of reference, the quoted words were added for the sake of convenience as to where the notice to the workmen should be sent would not in our opinion make the reference incompetent. The objection further is that even if the workman is entitled to be represented by an officer of a trade union of which he is a member, the reference in this case does not mention any officer of the trade union, but mentions the union itself. This in our opinion is a technicality upon technicality, for the union not being a living person can only be served through Borne officer, SUCH as its president or secretary and it is that officer who will really represent the workmen before the tribunal. We are, therefore, of opinion that the reference which is otherwise valid does not become incompetent simply because it is mentioned therein that the workmen will be represented by such and such union in the dispute. We may in this connexion point out that the large majority of references under the Act, which we have come across, are usually in this form and the reason for it is obvious, namely, the convenience of informing the tribunal to whom it should send a notice on behalf of the workmen, whose number is generally very large. We, therefore, reject the contention that the reference is bad simply because in the order of reference the words 'as represented by the Hotel Workers' Union, Katra, Shahanshahi, Cnandni Chowk, Delhi' have been added.
8. In the case of Ram Prosad Viswakarma 1961--I L.L.J. 504 (supra). Das Gupta, J., observed:
It is now well settled that a dispute between an individual workman and an employer cannot be an industrial dispute, as defined in Section 2(k) of the Industrial Disputes Act, unless it is taken up by a union of the workmen or by a considerable number of workmen. In Central Provinces Transport Service, Ltd. v. Raghunath Gopal Patwardhan 1957--I L.L.J. 27, Venkatarama Ayyar, J. speaking for the Court, pointed out after considering numerous decisions in this matter that the preponderance of judicial opinion was clearly in favour of the view 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 a union or a number of workmen:
'Notwithstanding that the language of Section 2(k) is wide enough to cover disputes between an employer and a single employee,' observed the learned Judge, 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 rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of adjudication under the Act, when the same had not been taken up by the union or a number of workmen.'
This view which has been reaffirmed by the Court in several later decisions recognizes the great importance in modern industrial life of collective bargaining between the workmen and the employers. It is well known how before the days of collective bargaining labour was at a great disadvantage in obtaining reasonable terms for contracts of service from his employer. As trade unions developed in the country and collective bargaining became the rule, the employers found it necessary and convenient to deal with the representatives of workmen, instead of individual workmen, not only for the making or modification of contracts but in the matter of taking disciplinary action against one or more workmen and as regards all other disputes.
The necessary corollary to this is that the individual workman is at no stage a party to the industrial dispute independently of the union. The union or those workmen, who have by their sponsoring turned the individual dispute into an industrial dispute, can therefore claim to have a say in the conduct of the proceedings before tribunal.
9. In the latter judgment, the earlier judgment of the Supreme Court was not considered and both the judgments do not speak in the same voice. But in the case of Manager, Hotel Imperial 1959--II L.L.J. 553 (supra), the point for decision was the competency or otherwise of the form of the reference, under Section 10 of the Industrial Disputes Act, in which it was stated:
Whereas...it appears that an industrial dispute exists between the management of the Hotel Workers' Union....
The objection taken was that the reference was incompetent inasmuch as the anion could not be made a party to the reference. In repelling the objection as a mere technicality, their lordships made the observations as set out above. The observations concerning right of the workmen for representation by a anion, other than the union named or to apply for being made parties individually, were in the nature of obiter dictum, because the aforesaid two points did not directly arise for decision. In Ram Prasad Viswakarma case 1961--I L.L.J. 504 (supra), however, the point for decision was the right of a workman to have separate representation in an industrial adjudication on the ground that be had lost faith in the collective representation by the union, which he was having. In negativing the claim, Das Gupta, J., made the observations, which I have set out above. The decision is a direct decision on the point.
10. Faced with an obiter dictum of the Supreme Court and a direct decision on the point by the same Court, to the contrary, I am bound to follow the direct decision, namely, the decision in Ram Prosad Viswakarma case 19-1--I L.L.J. 504 (supra) which accidentally also happens to be a later decision by the Supreme Court.
11. That being the position in law, the 171 individual workmen were not entitled to separate representation in the industrial adjudication. The respondent 6 union never wanted to be added as a party. Some of their members did. That they were not entitled to do. This is all the more so, because they were being represented by respondent 5 union, as the tribunal found.
12. Moreover, all others, excepting the two petitioners have submitted to the order. The two petitioners do not represent the other workmen who wanted separate representation. If I allow their prayer, the result may be that the two petitioners only will have opportunity to get themselves separately represented, despite the collective representation by respondent 5 union. This sort of separate individual representation was denounced in Ram Prosad Viswakarma case 1961--I L.L.J. 604 (supra).
13. For the reasons aforesaid, I do not feel inclined to interfere with the order. The rule is discharged. There will be no order as to costs.