Case: Kirloskar Brothers, Limited Vs. Its Workmen

Das Gupta, J.1. The workmen concerned in the present appeal are employees of a printing press now at Poona which belongs to the Kirloskar Bros., Ltd. The press was formerly situated at Kirloskarvadi at which place the appellant-company has also a factory manufacturing pumps, crushers, ploughs, machine tools and other machinery. A union of the workmen employed in the Kirloskar Bros., Ltd., Kirloskarvadi, was formed in 1951 under the name of Kirloskar Kamgar Union, Kirloskarvadi. This union had among its members, workmen employed in the factory as also workmen employed in the printing press. On 7 May, 1958, the union submitted a charter of demands on behalf of these members. A further charter of demands was submitted on 19 December, 1958. The matter was taken up by the conciliation officer on 14 April, 1959 but his efforts proved unsuccessful and on 2 September, 1959 the conciliation officer reported to the Government his failure to settle the matter. In the meantime on 7 June, 1959, the company shifted the printing press from Kirloskarvadi to Poona. About 67 per cent of the workmen employed in the press went to Poona to continue their service in the companys press there. The remainder who decided not to go to Poona were paid retrenchment compensation and other dues in accordance with law. On 20 November, 1959 the Government of the State of Bombay referred the dispute between the company and its workmen for adjudication to a tribunal consisting of Sri J. A. Baxi. The schedule to the reference mentions eight matters as in dispute. They are :(1) Standardization of occupation, categories, designations and duties under them.(2) Grade for workmen (including the workers from the Kirloskar press, factory, but excluding clerks and supervisors).(3) Fixation of the workmen in proper grades.(4) Scales of wages and salaries.(5) Promotions.(6) Leave with pay.(7) Lighting charges.(8) Superannuation.2. On 25 December 1959 the union filed a written statement purporting to be on behalf of not only the workmen in the appellants factory at Kirloskarvadi but also for the employees of the press at Poona. In its written statement on 26 February, 1960, the company contended inter alia(1) that the reference as made by the Government could give no jurisdiction to the tribunal to deal with any alleged disputes as between the company and its workmen of the press at Poona, and(2) the union which had filed a written statement as on behalf of these employees of the press at Poona did not in law represent these workmen.3. A further contention was that the companys press was a separate and independent business unconnected with the companys business of the factory at Kirloskarvadi, so that if the tribunal decided to go into the merits, these must be decided on this basis that the press at Poona was a separate and independent business.4. The first question which arose for the tribunals decision was whether the previous award between the parties had been validly terminated. The tribunal held that it had been validly terminated and made an award which has been described as award part I dealing with this question only. In the present appeal we are not concerned with award part I. A further award was made by the tribunal on 10 March, 1962 as award part II dealing with some of the matters set out in the reference. The tribunal rejected the companys contention that the workmen of the press at Poona were not covered by the reference and also the contention that the union which had appeared before the tribunal as representing these workmen did not in law represent these workmen. The tribunal then dealt with some of the demand and gave its award. It rejected demands 1, 2 and 7; reserved its decision on demand 3 so far as directions as regards workmen mentioned in annexure B were concerned; also reserved its decision as regards demand 4 and made awards in favour of workmen in respect of demands 5, 6, 8. The award takes no notice of the companys contention that the companys press is an independent business, entirely separate and distinct from the companys factory, producing pumps and other machinery. This appeal by the company is against this award II only in respect of the employees of the press at Poona.The main contention urged in support of the appeal is that the tribunal erred in law in ignoring the companys contention that the press was an independent, distinct and separate business of the company. It is urged that a proper decision of the matters in dispute could not in law or fact be made without deciding in the first instance whether the press and the factory formed parts of the same business or they were distinct businesses. It was further urged that the tribunal erred in deciding that the workmen of the press were covered by the reference and was also wrong in holding that the union could in law represent these workmen.5. We do not think that there is any substance in the last two contentions. While it is true that the order of reference mentions an industrial dispute as existing "between the Kirloskar Bros., Ltd., Kirloskarvadi, and the workmen employed under it, " there can be no doubt on reading the order as a whole that it was intended to cover not only the workmen of the machine factory at Kirloskarvadi but also the employees of the companys press which was formerly at Kirloskarvadi but before the date of reference had been shifted to Poona. The words "between the Kirloskar Bros., Ltd., Kirloskarvadi, and the workmen employed under it" cannot on a reasonable interpretation be taken to mean a dispute as between the company and its workmen employed at Kirloskarvadi only. The word "Kirloskarvadi" appearing after the wards "the Kirloskar Bros., Ltd., " in the reference, is clearly descriptive. The reference, in our opinion, does cover all workmen of the Kirloskar Bros., Ltd., whether at Kirloskarvadi or at Poona.6. We are also of opinion that the union which filed its written statement on behalf of all the workmen of the company, including the workmen of the press at Poona, was in law entitled to represent these workmen. Our attention was drawn to Cl. (2) of the constitution and rules of the union which runs thus :-"The objects of the union shall be : (a) to organize and unite the persons employed in the Kirloskar Bros., Ltd., Kirloskarvadi, in the South Satara district, and to regulate their relations with their employees ..."and also to the name of the union which is "the Kirloskar Kamgar Union, Kirloskarvadi." It has to be noticed that at the time the union was formed and registered, the companys printing press also was at Kirloskarvadi, when the employees of the press became members of this union; this was quite in accordance with the constitution. The fact that the press later shifted to Poona would not affect the employees of the press who continued to be the members of the union.7. The tribunal therefore rightly rejected these two preliminary objections raised on behalf of the company. It appears to us however that before the tribunal could deal with the merits of the disputes in so far as it concerned the workmen of the press, it was necessary for it to consider and decide the companys contention that the company press at Poona was an independent business, separate and distinct from the factory which produced machines.8. It was faintly urged on behalf of the respondent-workmen that this plea that the printing press was a distinct and separate business was not pressed before the tribunal.9. In the petition for special leave to appeal there is a categorical statement not only that this plea having been raised clearly in the written statement arose for decisions but that overwhelming evidence had been led by the petitioner and elaborate arguments had been advanced on behalf of the petitioner on this issue. This assertion in the petition for special leave was supported by an affidavit of the companys secretary. The correctness of this assertion has not been challenged by any counter-affidavit. The statement of the case filed on behalf of the respondent also does not clearly challenge the correctness of the statement made in the affidavit but merely says :"The respondents state that neither in the affidavit of Sri P. S. Pandhye nor at the time of the hearing the appellant contended or proved that different considerations should apply in respect of terms and conditions of service of press workers at Poona regarding the demands 5, 6 and 8."10. This cannot be considered a denial of the appellants assertion that the plea that the printing press at Poona was an independent business, separate and distinct from the factory which continued at Kirloskarvadi, was in fact pressed at the hearing.11. The tribunals award in so far as it concerns these press employees cannot therefore be considered to have been properly arrived at in the absence of a prior decision of the preliminary question whether the press was an independent business, distinct and separate from the factory or not. Whether or not the decision of the tribunal on this issue will affect the decision on the disputes 5, 6 and 8, it is unnecessary for us to consider. The proper course for industrial adjudication to follow in cases where an issue of this kind is raised is to decide this issue first and then to consider and decide the demands on the basis of that finding. As that has not been done, the only proper course for us to adopt is to set aside the award that has been made with regard to demands 3, 4, 5, 6 and 8 in so far as the workmen in the press are concerned and to remit the case to the tribunal for disposal in accordance with law.

Decision:
1[ds]5. We do not think that there is any substance in the last two contentions. While it is true that the order of reference mentions an industrial dispute as existing "between the Kirloskar Bros., Ltd., Kirloskarvadi, and the workmen employed under it, " there can be no doubt on reading the order as a whole that it was intended to cover not only the workmen of the machine factory at Kirloskarvadi but also the employees of the companys press which was formerly at Kirloskarvadi but before the date of reference had been shifted to Poona. The words "between the Kirloskar Bros., Ltd., Kirloskarvadi, and the workmen employed under it" cannot on a reasonable interpretation be taken to mean a dispute as between the company and its workmen employed at Kirloskarvadi only. The word "Kirloskarvadi" appearing after the wards "the Kirloskar Bros., Ltd., " in the reference, is clearly descriptive. The reference, in our opinion, does cover all workmen of the Kirloskar Bros., Ltd., whether at Kirloskarvadi or at Poona.6. We are also of opinion that the union which filed its written statement on behalf of all the workmen of the company, including the workmen of the press at Poona, was in law entitled to represent these workmen. Our attention was drawn to Cl. (2) of the constitution and rules of the union which runs thus :-"The objects of the union shall be : (a) to organize and unite the persons employed in the Kirloskar Bros., Ltd., Kirloskarvadi, in the South Satara district, and to regulate their relations with their employees ..."and also to the name of the union which is "the Kirloskar Kamgar Union, Kirloskarvadi." It has to be noticed that at the time the union was formed and registered, the companys printing press also was at Kirloskarvadi, when the employees of the press became members of this union; this was quite in accordance with the constitution. The fact that the press later shifted to Poona would not affect the employees of the press who continued to be the members of the union.7. The tribunal therefore rightly rejected these two preliminary objections raised on behalf of the company. It appears to us however that before the tribunal could deal with the merits of the disputes in so far as it concerned the workmen of the press, it was necessary for it to consider and decide the companys contention that the company press at Poona was an independent business, separate and distinct from the factory which produced machines.In the petition for special leave to appeal there is a categorical statement not only that this plea having been raised clearly in the written statement arose for decisions but that overwhelming evidence had been led by the petitioner and elaborate arguments had been advanced on behalf of the petitioner on this issue. This assertion in the petition for special leave was supported by an affidavit of the companys secretary. The correctness of this assertion has not been challenged by any counter-affidavit. The statement of the case filed on behalf of the respondent also does not clearly challenge the correctness of the statement made in the affidavit but merely says :"The respondents state that neither in the affidavit of Sri P. S. Pandhye nor at the time of the hearing the appellant contended or proved that different considerations should apply in respect of terms and conditions of service of press workers at Poona regarding the demands 5, 6 and 8."10. This cannot be considered a denial of the appellants assertion that the plea that the printing press at Poona was an independent business, separate and distinct from the factory which continued at Kirloskarvadi, was in fact pressed at the hearing.11. The tribunals award in so far as it concerns these press employees cannot therefore be considered to have been properly arrived at in the absence of a prior decision of the preliminary question whether the press was an independent business, distinct and separate from the factory or not. Whether or not the decision of the tribunal on this issue will affect the decision on the disputes 5, 6 and 8, it is unnecessary for us to consider. The proper course for industrial adjudication to follow in cases where an issue of this kind is raised is to decide this issue first and then to consider and decide the demands on the basis of that finding. As that has not been done, the only proper course for us to adopt is to set aside the award that has been made with regard to demands 3, 4, 5, 6 and 8 in so far as the workmen in the press are concerned and to remit the case to the tribunal for disposal in accordance with law.