IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.: 8419 of 2010 a/w . [CASE NUMBER] Reserved on: 16.04.2019 Decided on: 12.06.2019. [CASE NUMBER] Smt. [ENTITY] and others Petitioners. Versus [ENTITY] and another Respondents. [CASE NUMBER] BATA India Limited Petitioner. Versus [ENTITY] and others Respondents. Coram The Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting?1 Yes [CASE NUMBER] For the petitioners : M/s [ENTITY] and [ENTITY], Advocates. For the respondents : M/s [ENTITY] and [ENTITY], Additional Advocate Generals with Mr. [ENTITY], Deputy Advocate General for respondent No. 1. Downloaded on - 28/09/2019 23:25:22 HCHP : M/s [ENTITY] and [ENTITY], Advocate for respondent No. 2. . [CASE NUMBER] For the petitioners : M/s [ENTITY] and [ENTITY], Advocates. For the respondents : M/s [ENTITY] and [ENTITY], Additional Advocate Generals with Mr. [ENTITY], Deputy Advocate General for respondent No. 1. : Mr. [ENTITY], Advocate for respondents No. 2 and 3. [ENTITY], Judge (Oral)
As common issues of law and facts are involved in both these writ petitions, they are being disposed of by a common judgment.
2. Both these petitions have been filed against the award passed by the Court of learned Presiding Judge, H.P. Industrial Tribunal-cum-Labour Court, Shimla, in [CASE NUMBER], titled as [ENTITY] and another vs. The Area Manager, Bata India, vide which, learned Tribunal while answering the Reference made to it by the appropriate Government, granted the following relief to the petitioners therein:
"As a sequel to my findings on the aforesaid issues, the claims of the petitioners are allowed and their transfer as per order dated 22.11.2004, is .
cancelled and set aside. The respondent is directed to re-consider their transfer from Parwanoo depot, which now stands closed, strictly in accordance with the Standing orders/Rules and if possible, they be adjusted/transferred to the nearest depot from Parwanoo. Besides, it is also ordered that they (petitioners) be reinstated in service with seniority and continuity alongwith back wages @ 50%. Consequently, the reference stands answered in favour of the petitioners and against the respondents.
Let a copy of this award be sent to the appropriate government for publication in official gazette. File, after completion be consigned to records."
3. [CASE NUMBER] has been filed by [ENTITY], i.e. the employer, whereas [CASE NUMBER] has been filed by the claimants before the learned Court below. During the pendency of the petition, claimant/ petitioner [ENTITY] died and his legal representatives were brought on record.
4. Briefs facts necessary for the adjudication of these petitions are as under:-
5. [ENTITY] and [ENTITY] (hereinafter referred to as workmen) were the employees of Bata India .
Limited (hereinafter referred to as Company). [ENTITY] was engaged as a Sales Assistant in the year 1974 and [ENTITY] was engaged as Packer in the year 1979. Since 1990, both were working at Parwanoo Wholesale Depot of the Company. Vide order dated 22.11.2004, [ENTITY] was transferred from Wholesale Depot Parwanoo to Chennai Depot. Vide same order, [ENTITY] was transferred from Parwanoo Depot to Kochhi Depot of the employer in the State of Kerala.
6. Feeling aggrieved, the workmen made representations to the Company for cancellation of their transfer on the ground that the transfer was in violation of the Standings Orders and Rules framed for the Depot employees by the Company, as per which, an employee could not be transferred from one State to another State without his will and consent. As no action was taken on their representations, a Demand Notice was issued by the workmen dated 14.09.2005 addressed to the concerned Labour Inspector.
7. As the dispute could not be resolved, a Civil Suit was also filed by the workmen in the Court of learned Civil .
Judge (Jr. Divn.) [ENTITY]. In the meanwhile, Labour Inspector referred the dispute to the Labour Commissioner and thereafter, the appropriate government made the following Reference before learned Industrial Tribunal-cum-Labour Court:
"Whether the transfers of Shri [ENTITY] workman and transfers of Shri [ENTITY] workman from wholesale Depot, Bata India Ltd., Plot No. 25, Sector-1, Parwanoo, District Solan, HP to Tamil Naidoo and further nonpayment of wages to the aforesaid workmen contrary to the orders dated 5.8.2005 passed by the Hon'ble Civil Judge (Senior Division), [ENTITY], District Solan, HP and against the rule no. 2-A page 22 of Standing Orders and Rules Depot employees of Bata India Ltd. Calcutta is proper and justified? If not, for what relied of service benefits and compensation the above aggrieved workmen are entitled to"? "
Said Reference stands answered in terms already enumerated herein-above.
8. Whereas the workmen have challenged the award on the ground that they were entitled to payment of full back wages alongwith interest, the award has been challenged by the Company inter alia on the ground that the Reference .
made to the learned Industrial Tribunal-cum-Labour Court was erroneous and could not have been made by the appropriate government and therefore, the award passed by the learned Industrial Tribunal-cum-Labour Court is void ab initio and not sustainable in law.
9. I have heard learned Counsel for the parties at length and also gone through the impugned award as well as the record of the case.
10. As the issue raised by the Company pertains to the legality of the award under challenge, I will first deal with the contentions of the employer.
11. Learned Counsel for the petitioner-Company argued that the very Reference made by the appropriate government to the Industrial Tribunal-cum-Labour Court was bad in the eyes of law as there was no Industrial Dispute on which any Reference could have been made by the appropriate Government to the Court concerned. He argued that under the [ACT], an individual dispute raised by a workman cannot be treated to be an Industrial Dispute within the meaning of [SECTION] of the Act and the only exception are the disputes which are covered under .
[SECTION] of the [ACT]. As per him, the dispute qua the transfer order was not raised either by a substantial number of employees or by the Management as is required under the [ACT] and this extremely important aspect of the matter was ignored both by the appropriate Government while making the Reference as well as by learned Tribunal while answering the Reference. He has further argued that both the appropriate Government as well as learned Tribunal erred in not appreciating that even otherwise once the workman had invoked the jurisdiction of civil Court at [ENTITY] where they had assailed the transfer order, therefore also, simultaneously on the same issue, they could not have invoked the provisions of the [ACT] especially when the matter was still pending before the learned Civil Court. On these grounds, he submitted that as both the Reference made by the appropriate Government and the award passed by the learned Tribunal were not sustainable in law, the same were liable to be quashed and set aside.
12. On the other hand, learned Counsel for the workmen argued that as the private respondents were .
admittedly workmen, therefore, the transfer order could have been assailed under the provisions of [ACT] and there was no bar that because earlier a civil suit stood filed assailing the said transfer order, therefore, an Industrial Dispute with regard to the same could not be raised by the workmen. He has further argued that there is no bar that individual workman aggrieved by the act of an employer can not in his own capacity raise an Industrial Dispute. He also argued that as the aggrieved persons were workman and employer was an industry, therefore, the dispute between them per se had to be decided as per the mechanism provided under the [ACT].
13. Learned Additional Advocate General submitted that as a Demand Notice was raised by the workmen, the Authorities had no option but to deal with the same as per the provisions of the [ACT] and this is exactly what was done by the authorities in the present case.
14. I have given a careful consideration to the respective contentions of the learned Counsel for the parties.
15. Under the [ACT], an Industrial Dispute has been defined in [SECTION] as under:-
"Any dispute or difference between employers and workmen or between workmen and workmen, connected with the employment or non-
employment or the terms of employment, or with the conditions of Labour of any person."
16. [SECTION] of the [ACT], inter alia provides that the dismissal etc. of an individual workmen is to be deemed to be an Industrial Dispute. As per this Section where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an Industrial Dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
17. Admittedly, in the present case, the grievance raised by the workmen under the [ACT] did not pertain to their discharge, dismissal, retrenchment or termination from service. They were in fact aggrieved by their transfer.
18. It is an admitted position that in the case in hand "dispute" was raised by both the workmen in their personal capacity and the same was not espoused by substantial number of employees of the employer/Company or by the Management.
19. It is settled law that under [SECTION] of the [ACT], the appropriate government can refer to a Tribunal or Labour Court only an Industrial Dispute. In other words, if there is no Industrial Dispute, the same cannot be referred by the appropriate Government to a Tribunal or Labour Court.
20. I have also carefully perused the record of the learned Labour Court. There are two separate claim petitions on record, one preferred by the workmen [ENTITY], who was ordered to be transferred from wholesale Depot Parwanoo to Chennai Depot and the other by workmen [ENTITY], who was ordered to be transferred from Wholesale Depot, Parwanoo to Kochhi Depot in the State of Kerala.
21. It is apparent from the contents of the claim petitions so filed by the workmen that they had initially .
assailed the transfer order in the Court of learned Civil Judge (Junior Division), [ENTITY] and the operation of the transfer order was stayed by the said Court on 22.11.2004.
22. The prayer made in the respective claim petitions was that impugned transfer order passed by the Company be quashed and set aside as the same was contrary to the Standing Orders/Rules for depot employees and the employer be directed to pay the wages/salary to the workmen as claimed by them.
23. Alongwith the claim petitions, the Demand Notice vide which purportedly an 'Industrial Dispute' was raised by the petitioners is also appended, which is dated 14.09.2005.
24. A perusal of the same demonstrates that the dispute was raised by the petitioners themselves individually and their cause was neither espoused by the Management or substantial number of employees of the employer/company.
25. By way of its reply filed to the claim petition, the company denied the claim of the workmen. A perusal of the same demonstrates that company took preliminary objection with regard to the maintainability of the claim petition inter alia on the ground that the workmen was having no locus to .
file and maintain the same and further that as the workmen had already filed a civil suit on the same because, therefore, also the proceedings initiated under the [ACT] were not maintainable. By way of rejoinder, workmen reiterated their claim and denied that the proceedings initiated under r the [ACT] were not maintainable.
26. Be that as it may, the fact of the matter still remains that in the present case, no 'Industrial Dispute' as is envisaged under [SECTION] of the [ACT] was raised either by the Management or by a substantial number of employees of the company concerned. It was an individual dispute raised by the workmen feeling aggrieved by the 'order of transfer' passed by the Company. In these circumstances, the appropriate Government while making the Reference to the learned Labour Court erred in not appreciating that as there was no 'Industrial Dispute' raised before it as is envisaged under [SECTION] of the Act, it could not have had made any Reference for adjudication to the Industrial Tribunal-cum-Labour Court.
27. A five Judge Bench of Hon'ble Supreme Court in [PRECEDENT], has held that the word Industrial Dispute convey the meaning to the ordinary mind that the dispute must be such as would affect large groups of workmen and employers ranged r on opposite sides on some general questions on which each group is bound together by a community of interest.
28. A four Judge Bench of Hon'ble Supreme Court in [PRECEDENT] has held as under:-
"8. The question whether a dispute by an individual workman would be an industrial dispute as defined in [SECTION] of the [ACT], has evoked considerable conflict of opinion both in the High Courts and in Industrial Tribunals, and three different views have been expressed thereon: (I) A dispute which concerns only the rights of individual workers, cannot be held to be an industrial dispute. That was the opinion expressed in Kandan Textiles v.
Industrial Tribunal(1). There, [ENTITY] C. J. observed that though the language of the definition in [SECTION] was wide enough to include such a dispute, .
the provisions of suggested that something more than an individual dispute between a worker and the employer was meant by an industrial dispute. The other learned Judge, [ENTITY] J., was more emphatic in his opinion, and observed that the Act was "never intended to provide a machinery for redress by a dismissed workman". It became, however, unnecessary to decide the point, as the court came to the conclusion that the reference it self was bad for the reason that there was no material on which the Government could be satisfied that there was a dispute. The views expressed in (supra) were approved in [PRECEDENT]; but here again, the observations were obiter, as the point for decision was whether a right of appeal conferred by [SECTION] of the [ACT] was taken away by implication by [ACT]. The question, however, arose directly for decision in [PRECEDENT], in which the order of the Government referring the dispute of a dismissed employee to the adjudication of a Tribunal was attacked as incompetent, and it was held by [ENTITY] J., following the observations in # (supra) that the dispute in question was not an industrial dispute, and that the reference was, in consequence, bad.
(II) A dispute between an employer and a single .
employee can be an industrial dispute as defined in [SECTION]. That was the decision in [PRECEDENT]. In that case a reference of a dispute by a dismissed employee and the award of the Tribunal passed on that reference were attacked as bad on the ground that the dispute in question was not an industrial dispute within [SECTION] of [ACT], and it was held by [ENTITY] J., that an industrial dispute could come into existence even if the parties thereto were only the employer and a single employee and that the reference and the award were, in consequence, valid.
A similar decision was given by a Full Bench of the Labour Appellate Tribunal in [PRECEDENT].
(III) 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. That was held by [ENTITY] J., in [PRECEDENT], by [ENTITY] and [ENTITY] JJ., in $ % ! " &' & (' (3) and by [ENTITY] J., in [PRECEDENT] and by the Industrial Tribunals in Gordon Woodroffe & Co.
(Madras). Ltd. v. Appa Rao(5) and [PRECEDENT].
9 The preponderance of judicial opinion is .
clearly in favour of the last of the three views stated above, and there is considerable reason behind it. Notwithstanding that the language of [SECTION] is wide enough to cover a dispute between an employer and a single employee, the scheme of the ) * !" 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 an adjudication under the Act, when the same bad not been taken up by the Union or a number of workmen."
29. The Hon'ble Supreme Court in The [PRECEDENT], while referring to the judgment of the Hon'ble Supreme Court in [PRECEDENT] (supra) has reiterated that the applicability of the [ACT] to an individual dispute as distinguished from a dispute involving a group of workmen is excluded, unless the workmen as a body or a considerable section of them make common cause with the individual workman.
30. The Hon'ble High Court of Delhi in [CASE NUMBER], titled as [PRECEDENT] and the connected matter, has held as under:-
9. " ' of the [ACT] authorizes the appropriate Government to refer to a Tribunal or Labour Court only an industrial dispute.
If there is no industrial dispute, the same cannot be referred. As per Labour Jurisprudence, the dispute between an individual and the management cannot be an industrial dispute unless it is covered under " ' ! of the [ACT]. Thus in order to be an industrial dispute, it must satisfy the definition of " ' +,- of the [ACT]. In [PRECEDENT] , Supreme Court observed as under:
The definition of "Industrial Dispute" in " ' +,- of the Act shows that an Industrial Dispute means any dispute or difference between an employer and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of the employment or with the condition of labour, of any person. The definition has been the subject matter of several decisions of this Court and the law is well settled. The locus classicus is the decision in the Workman of [ENTITY] .
(Saughandhi) v. [ENTITY] (Saughandhi) where it was held that for the purposes of " ' +,- it must be shown that (1) the dispute is connected with employment or non employment of a workman.(2) the dispute between a single workman and his employer was sponsored or espoused by the Union of workmen or by a number of workmen. The phrase "the union" merely indicates the Union to which the employee belongs even though it may be Union of a minority of the workmen, (3) the establishment had no union on its own and some of the employees had joined the Union of another establishment belonging to the same industry. In such a case it would be open to that Union to take up the cause of the workmen if it is sufficiently representative of those workmen, dispute the fact that such Union was not exclusively of the workmen working in the establishment concerned. An illustration of what had been anticipated in [ENTITY]'s case is to be found in the .' , '/ * $ % * * +0 -1 2 3 '/ * $ % * * 0 1 .
where an 'outside' union was held to be sufficiently representative to espouse the cause.
10. Thus, in order to give jurisdiction to the appropriate Government to refer the dispute and to the Tribunal/Labour Court to adjudicate the dispute, it was essential for the workman to show that his individual dispute for regularization was .
sponsored or espoused by a union of the workmen.
12. The dispute between an individual workman and the employer can be treated as an industrial dispute only where the workmen as a body or a considerable section of them, make common cause with the individual workman and espoused his demand "
31. Thus, it is evident from the case law referred to herein-above that an individual dispute cannot be termed to be an Industrial Dispute unless the workmen as a body or considerable section of them make common cause with the individual workman.
32. Coming back to the facts of this case. As already discussed above, it is not in dispute that the case of the workmen was not taken up with the appropriate Government either by appreciable number of employees or by the Management. In other words, the cause of the workmen was not espoused either by number of workmen or by the Management. The cause was independently espoused by both the workmen in their individual capacity before the appropriate Government. Such dispute, which was individually raised by the workmen feeling aggrieved by the .
issuance of the transfer order, by no stretch of imagination, could have been referred to Industrial Tribunal-cum-Labour Court by the appropriate Government under [SECTION] of the [ACT]. That being so, adjudication upon the said Reference by the learned Labour Court, which stands assailed by way of the writ petition filed by the employer, is per se void ab initio and not sustainable in the eyes of law.
33. In order to give an opportunity to the learned Counsel for the workman to demonstrate that an Industrial Dispute qua transfer orders could have been individually espoused by them under the [ACT], sufficient time was given, but he could not substantiate in law that such a dispute could have been individually raised by them and subsequently referred by the appropriate government by way of a Reference for adjudication to the Industrial Tribunal-cum-Labour Court.
34. Thus, as it is apparent that no individual Industrial Dispute could have been raised by the workmen against the transfer order, the Reference made by the appropriate Government on the demand notice of the workmen was bad in law and not in consonance with the .
provisions of [SECTION] of the [ACT]. As a natural corollary, the adjudication of the said Reference by the learned Tribunal by way of award dated 04.08.2010 in [CASE NUMBER] is also thus void ab initio and not sustainable in law.
35. Accordingly in view of discussion held herein-
above, both the Reference made by the appropriate Government as well as the award dated 04.08.2010 passed in [CASE NUMBER], titled as [ENTITY] and another vs. The Area Manager, Bata India, by learned Tribunal are quashed and set aside. Consequently, the writ petition filed by the Company, i.e. [CASE NUMBER], is allowed whereas the writ petition filed by the workmen, i.e. [CASE NUMBER], is dismissed. No orders as to costs.
The petitions stand disposed of in above terms of, so also pending miscellaneous application(s), if any.
([ENTITY]) Judge June 12, 2019 (narender)