JUDGMENT M.U. Isaac, J.
1. This writ petition has been filed to quash an award Ext. P-6 dated 28-11-1969 passed by the second respondent, the Industrial Tribunal, Calicut in I.D. No. 41 of 1967. The petitioner is the proprietor of a textile shop by name Vimala Stores, Thodupuzha. In a part of the building wherein he is carrying on the said business, there are a number of tailors engaged in making clothes. According to the petitioner, all of them were engaged by one Vasu Pillai who takes orders from the public. The petitioner is also dealing in ready-made clothes ; and admittedly he used to give orders for making clothes to the above tailors through Vasu Pillai. By April, 1967, these tailors and the persons working under them claimed to be workmen of the petitioner ; and they started an agitation to get their demands recognised by the petitioner, with the result the petitioner was obliged to close his shop for some days. At that time, one K. Y. George, who styled himself as the Convenor of the Action Council of the Vimala Tailors' Union, Thodupuzha, issued a registered notice Ext. P-l, dated 14-4-1967, to the petitioner making certain demands on behalf of the said workers. This was followed by a notice from the local Labour Officer, calling upon the petitioner to make returns in respect of the said workers under the Shops and Commercial Establishments Act. The petitioner replied stating that he had nothing to do with those persons. In the meanwhile the Thodupuzha Taluk Shop and Commercial Establishment Workers' Union, who is the first respondent in this O.P was formed ; and the cause of the workers was taken up by that union. On the basis of the report of the Labour Commissioner, the State Government passed an order Ext. P-2 dated 3-8-1967 referring two issues for the adjudication of the second respondent. They are (1) denial of employment to 12 persons mentioned therein; and (2) whether the lock-out was justified, and in either case to what relief the workmen were entitled to.
2. The first respondent submitted a detailed statement regarding the claim of the workers. It contended that the petitioner has in all 18 workmen under him, that he locked out his establishment when they made certain demands against him, that he influenced 6 of the workmen to withdraw the demands, and that wrongfully denied employment to the remaining 12 workmen, whose names are mentioned in the order of reference. They accordingly claimed to be reinstated with back wages-The period of the alleged lock-out was from April, 1967 to 1-8-1967. The petitioner denied con-ducting of any tailoring establishment, and contended that none of the said workers was his employee and that there was no scope for any lock-out. The petitioner raised a further contention that the reference was incompetent as the union which took up the cause of the workers was one which was formed subsequent to the dispute.
3. In the course of the proceedings before the Tribunal, four of the workmen filed statements before the Tribunal stating that the alleged dispute was one falsely raised for political reasons and that they were neither interested in the matter nor entitled to get any relief. A similar statement was filed by another workman also, which the Tribunal seems to have failed to notice. It also failed to consider the question of the competence of the reference. It held that there was employer-employee relation between the petitioner and the twelve workmen; and he passed an award in favour of eight of the workmen directing the petitioner to give them compensation at the rate of one week's wages for every completed year of service. The quantum of wages and the period of service were fixed on the basis of a statement filed by the second respondent. The second issue relating to the alleged lock-out was found in favour of the petitioner.
4. Two contentions were raised by counsel for the petitioner against the attainability of the award. One is that the reference is incompetent for the reason that the trade union which sponsored the cause of the workmen is one which came into existence long after the dispute originated. The second contention is that there is no evidence to support the finding that the twelve workmen mentioned in the reference or any of them were the employees of the petitioner.
5. I shall consider the question of competency of the reference first. According to the petitioner, a trade union which did not exist at the time of origin of the dispute is not entitled to take up that dispute, and sponsor the cause of the workmen; and a reference at the instance of such a trade union is without jurisdiction. In support of that contention, counsel for the petitioner relied on a Division Bench decision of this Court in Shamsuddin v. State of Kerala 1961 1 L.L.J. 77. In that case three workers of an establishment were dismissed from service which gave rise to a dispute. Subsequently these employees got themselves enrolled as members of a trade union who took up their cause; and the Government referred the dispute for adjudication. Before the Tribunal, these workmen filed an application stating that they had resigned from the said trade union and joined another trade union, and praying that the second trade union may be allowed to represent their cause in the adjudication proceeding. The first trade union then filed another application stating that it did not desire to prosecute the matter and praying that the proceeding may be dropped. The Tribunal allowed the first application, permitting the second union to represent the workers, and dismissed the other application. The award passed by the Tribunal was questioned on the ground that a trade union, whose membership was accepted by the aggrieved workmen subsequent to the origin of the dispute was not competent to represent them and sponsor their cause. A learned single Judge of this Court rejected the above contention; but the Division Bench reversed his decision. It is interesting to note that both the Single Bench and the Division Bench relied on the decisions of the Supreme Court in D.N.Banerji v. P.R. Mukerji 1953-1 L.L.J. 195; Central Provinces Transport Service v. Ragunath 1957 I L. L. J. 27; and Newspapers Ltd. v. State Industrial Tribunal 195711 L.L.J. I, in support of their conflicting decisions. The Division Bench agreed with the opinion of a learned single Judge of the Andhra Pradesh High Court in Padarthy Ratnam & Co. v. Industrial Tribunal and Ors. [195811 L.L.J. 290], wherein the learned Judge stated that the primary requirement of an industrial dispute was that the cause of the workmen must be sponsored by a trade union of which they are members on the date on which disciplinary action was taken against them, or by a substantial section of the workmen in the establishment. In other words, membership of the union must be anterior to the date of the origin of the dispute and not subsequent to it. Counsel for the petitioner also relied on the following passage appearing at page 80 of the report in the decision of the Division Bench That apart, we feel in any fair determination of whether a dispute be trade or individual, some date will have to be fixed. It is equally cleat that such a date must be approximate to the time the act complained against has happened. The approximate date must further not be such as to allow the plea that the dispute originally concerned individuals. It follows that any hiatus between the end of the act and arising of interest must be avoided and that we think can only be by insisting on the community of interest not arising at a later date. Therefore, in determining whether the dispute be trade dispute or otherwise, the material time is when the act complained against has happened and not when the dispute is referred.
The above decision has been followed by a learned single Judge of the Punjab High Court in Khadi Gramodyog Bhavan Workers'1 Union v. Krishna Muni . The statements contained in the Division Bench decision of this Court are wide enough to support the contention of the petitioner's counsel. Speaking with the greatest respect, I have considerable doubt on the correctness of the above decision, in the light of the clear provision contained in Section 10(1) of the Industrial Disputes Act, 1947, and some of the statements contained in the decisions of the Supreme Court relied on by the Division Bench itself. But I do not feel obliged to refer this case to a larger Bench, since it can be fairly distinguished from the case before the Division Bench. In the case before me, the dispute related to the non-employment of twelve workmen out of the total employment strength of eighteen. Therefore, they form a substantial section of the workmen, and the dispute raised by them would admittedly be an industrial dispute. Further, in the instant case, the cause of the workmen was sponsored by a trade union of which they were members before the reference was made, unlike the case before the Division Bench, in which the workmen concerned joined the membership of the trade union only when the reference was pending.
6. Section 10(1) of the Act reads:
10. Reference of disputes to Boards, Courts or Tribunals.(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order In writing
(a) refer the dispute to a board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute, to a Court for inquiry ; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication :
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court, under Clause (c):
Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that It would be inexpedient so to do, make reference under this Sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced.
It is clear beyond any doubt from the above provision that the only condition for making a reference is the existence or the apprehension of an industrial dispute in the opinion of the Government at the time of making the reference. Admittedly, a dispute would be an industrial dispute, though it may concern only one workman, if his cause is sponsored by a substantial section of the workmen in his establishment, or by a trade union of which he is a member. So the only question, in a case where the dispute is not espoused by a substantial section of the workmen, but by a trade union, would be whether the union has espoused the cause of the aggrieved workmen before the date of reference. If that is so, the dispute would become an industrial dispute; and the reference would be valid. It is well-established by the decision of the Madras High Court in Working Journalists of The Hindu v. The Hindu 19611 L.L.J. 288, which has been approved by the Supreme Court in Bombay Union of Journalists v. The Hindu 196111 L.L.J. 436 that a reference once validly made does not become incompetent by virtue of the fact that the workers or a substantial section of them who had originally sponsored the cause, had later resiled or withdrawn from it. This was precisely the question before the Division Bench.
7. I shall now refer to certain relevant passages appearing in the decision of the Supreme Court, which have been cited by the Division Bench. In D.N. Banerji v. P.R. Mukerji 19531 L.L.J. 195 the Court stated:
The words 'industrial dispute' convey the meaning to the ordinary mind that the dispute must be such as would effect large groups of workmen and employers ranged on opposite sides on some general questions on which each group is bound together by a community of interestssuch as wages, bonuses, allowances, pensions, provident fund, number of working hours per week, holidays, and so on. Even with reference to a business that is carried on we could hardly think of saying that there is an industrial dispute where the employee is dismissed by his employer and the dismissal is questioned as wrongful. But at the same time, having regard to the modern conditions of society where capital and labour have organised themselves into groups for the purpose of fighting their disputes and settling them on the basis of the theory that union is strength, and collective bargaining has come to stay, a single employee's case might develop into an industrial dispute, when, as often happens, is taken up by the trade union of which he is a member and there is a concerted demand by the employees for redress. Such trouble may arise in a single establishment or a factory. It may well arise also in such manner as to cover the industry as a whole in a case where the grievance, if any, passes from the region of individual complaint into a general complaint on behalf of all the workers in the industry. Such widespread extension of labour unrest is not a rare phenomenon but is of frequent occurrence. In such a case, even an industrial dispute, in a particular business becomes a large scale industrial dispute, which the Government cannot afford to ignore as a minor trouble to be settled between the particular employer and workmen.
In Central Provinces Transport Services Ltd. v. Raghunath 19571 L.L.J. 27, the following passage occurs:
The preponderance of judicial opinion is clearly in favour of the last of the three views stated above (i.e., 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, and there is considerable reason behind it).
The above two decisions have been quoted with approval in Newspapers Ltd. v. Industrial Tribunal [195711 L.L.J. 1] wherein the following passage appears:
But at the same time, having regard to the modern conditions of society where capital and labour have organised themselves into groups for the purpose of fighting their disputes and settling them on the basis of the theory that in union is strength, and collective bargaining has come to stay, a single employee's case might develop into an industrial dispute, when, as often happens, it is taken up by the trade union of which he is a member and there is a concerted demand by the employees for redress.
There is another passage at page 8 of the report as follows:
Tajammul Hussain could not be termed workmen (in the plural) nor could the Uttar Pradesh Working Journalists Union be called "his workmen" nor is there any indication that the individual dispute had got transformed into an industrial dispute. The very basis, therefore, of the reference was bad and must be held to be so.
The latter part of the above statement clearly shows that what was originally an individual dispute can subsequently get transformed into an industrial dispute; and it happens when the individual dispute is taken up by a substantial section of the workmen or by a trade union of which he is a member. I am constrained to observe that none of the above decisions would lend support to a proposition that a trade union of which an aggrieved workman is not a member at the origin of the dispute is incompetent to espouse his cause, and that a reference for adjudication under Section 10(1) of the Act in respect of such a dispute would be without jurisdiction, though the union had taken it up before the reference was made. On the other hand, the above authorities indicate the contrary.
8. I shall refer to the decision of the Supreme Court in Bombay Union of Journalist Hindu 196111 L.LJ. 436, which has been already noticed in another context. It is not narrate to narrate the facts of the case. This decision has cited with approval all the above three decisions. The following sentence appearing at pages 442-443 is apposite:
In each case in ascertaining whether an individual dispute has acquired the character of an industrial dispute the test is whether at the date of the reference the dispute was taken up as supported by the union of workmen of the employer against whom the dispute is raised by an individual workmen or by an appreciable number of workmen.
There is another relevant passage at page 443:
If the dispute was in its inception an individual dispute and continued to be such till the date of the reference by the Government of Bombay, it could not be converted into an industrial dispute by support subsequent to the reference by workers interested in the dispute.
It is unnecessary to refer to more decisions. The correct legal position is well-settled. It is not necessary that a dispute, which relates to an action taken against an individual worker, should be originated by a substantial section of the workmen or a trade union, or that it should be taken up by them from the very inception, for that dispute to become an industrial dispute. The moment his cause is espoused by a substantial section of the workmen or a trade union of which he is a member, the dispute is transformed into an industrial dispute. And all that is necessary for a valid reference under Section 10(1) of the Act is that the Government is of opinion that an industrial dispute exists or is apprehended at the time of making the reference. The objection raised by the petitioner's counsel to the validity of the reference or of the award in this respect cannot, therefore, succeed.
9. The next question for consideration is whether the finding of the Industrial Tribunal that the twelve workmen mentioned in the order of reference were the employees of the petitioner can be sustained. The material relied on by the Tribunal for the above finding consists of (a) the report of the Assistant Labour Officer and (b) the evidence of two witnesses examined by the first respondent. One is a neighbouring shop owner; and the other is one of the 12 workmen mentioned in the reference order. I may at once say that the report of the Assistant Labour Officer is no evidence, so long as he has no direct knowledge about any of the things mentioned therein. His report is based on in formations gathered from other persons; and no material exists in support of any of his inferences or conclusions. The neighbouring shop owner, as seen from the award, deposed that he had no direct knowledge about the exact relationship which existed between the petitioner and the twelve persons who claimed to be his workers. It appears there is another statement in his deposition that all these persons were working under the petitioner. The Industrial Tribunal proceeded to say that there was no reason to disbelieve the said witness and his evidence showed that the workers were persons employed by the petitioner. I am unable to understand this conclusion. The Tribunal is only accepting the opinion of the witness as its conclusion, after ignoring the positive statement that the witness made to the effect that he did not know the relationship between these persons and the petitioner. The next witness, who is one of the twelve alleged workmen, has no doubt deposed that all the twelve of them are employees of the petitioner. There is no material whatsoever to show that this assertion is true. On the other hand, five among them put in statements before the Tribunal that the dispute was entirely a false one raised for political reasons, and that they are not entitled to, nor want, any reliefs. One among these twelve persons was examined by the petitioner; and he deposed that he was not the employee of the petitioner; and that all the tailors were employed by Vasu Pillai. The remaining five persons did not appear before the Tribunal, nor did they claim that they were the petitioner's employees. The Tribunal has also drawn an inference against the petitioner in not producing his books of accounts, which according to the Tribunal would have shown that these persons were his employees. This is a wild inference. It forgets the fact that the burden of proof is on the workmen to establish the employer-employee relationship. In attempting to discharge that burden, the first respondent may call for the books of account and other records of the petitioner; and if the petitioner refuses to produce them, an inference may be drawn against him that, if the said documents were produced, they would have shown what the opposite party wanted to make out. But the petitioner's case being that those persons are not his employees, there is no meaning in producing his books of account, which cannot furnish any positive material. Even the first respondent has no case that the petitioner's books of account would show that these twelve persons or any one of them were his employees. If so, he would have called on the petitioner to produce them.
10. The petitioner has examined himself and also two more witnesses. One of them, as already noticed, is one among the twelve persons mentioned in the award. All those persons have clearly deposed that the petitioner was not conducting any tailoring shop, and that he has not employed anyone of the said twelve persons in any such business. It is open for the Tribunal to accept or disbelieve their evidence, though there is no satisfactory reason to reject it. The fact remains that there is no admissible or relevant evidence to show an employer-employee relationship between the petitioner and any of the twelve persons mentioned in the award. The finding of the Tribunal cannot, therefore, be sustained.
11. The award for compensation is based on a statement filed by the first respondent regarding the length of service and the quantum of wages of the workman concerned. The Tribunal has accepted this statement saying that the entries therein were not seriously disputed by the management. Counsel for the petitioner submitted that the Tribunal acted dishonestly in making such an observation and acting on such a statement. I can only say that, on the face of it, the statement made by the Tribunal is meaningless. The whole case of the petitioner has been throughout that none of the persons mentioned in the award was his worker. The statement produced by the first respondent, though marked, has not been proved; and there is no material to substantiate its correctness.
12. For the reasons stated above, I allow this writ petition and quash the award, Ext. P-6. There will be no order as to costs.