THE HONBLE SRI JUSTICE [ENTITY] AND THE HONBLE SRI JUSTICE [ENTITY] WRIT APPEAL No[CASE NUMBER]998 of 2007 01-05-2015 [ENTITY] and another[CASE NUMBER]Appellants [ENTITY],And others[CASE NUMBER] Respondents Counsel for the Appellants: Sri [ENTITY] Learned Senior Counsel Counsel for the Respondents: Sri [ENTITY] Learned Senior Counsel <Gist : >Head Note : ? Cases referred 1[CASE NUMBER] (2001) 7 SCC 1 2[CASE NUMBER] 2015 SCC Online SC 363 3[CASE NUMBER] (1995) 5 SCC 27 4[CASE NUMBER] AIR 1960 SC 1328 5[CASE NUMBER] (1985) 2 SCC 136 6[CASE NUMBER] AIR 1963 SC 318 7[CASE NUMBER] 1970 (1) SCC 225 8[CASE NUMBER] (1975) 4 SCC 838 9[CASE NUMBER] 1962 Supp (3) SCR 589 10[CASE NUMBER] AIR 1963 AP 223 11[CASE NUMBER] 1966 (2) ALT 159 12[CASE NUMBER] (1995) 5 SCC 75 13[CASE NUMBER] (2007) 1 SCC 610 THE HONBLE SRI JUSTICE [ENTITY] AND THE HONBLE SRI JUSTICE [ENTITY] WRIT APPEAL No[CASE NUMBER]998 of 2007 JUDGMENT:
(per the Honble Sri Justice [ENTITY]) This Writ Appeal arises out of an order passed by the learned single Judge in [CASE NUMBER] dated 12[CASE NUMBER]10[CASE NUMBER]2007[CASE NUMBER]
2[CASE NUMBER] The short but important question of law raised in this Writ Appeal is whether a reference under [SECTION] of the [ACT] (for short, the Act) can be made at the instance of two workmen without intervention of the Union[CASE NUMBER] The learned single Judge held against the workmen[CASE NUMBER]
3[CASE NUMBER] The case of the workmen, who are the appellants herein, is that they have been working as Pump Operator and Electrician respectively in the respondent company[CASE NUMBER] The respondent company, in order to meet its daily requirements of water, sunk infilteration bore wells and established a plant under the control of its utilities department at a place six kilometres away from the factory[CASE NUMBER] The services of the appellants were engaged for maintenance of the said water plant[CASE NUMBER] The first appellant was appointed on 10[CASE NUMBER]09[CASE NUMBER]1984, whereas the second appellant was appointed on 03[CASE NUMBER]12[CASE NUMBER]1982[CASE NUMBER] Their further case is that their work was of perennial nature and they were provided with bachelors accommodation at the plant site and were required to stay all the 24 hours of the day and throughout the year without weekly off or holidays or earned leave or casual leave or sick leave or substitute, etc[CASE NUMBER] They were also supplied with walkie talkie to contact with the Deputy Manager of the utilities plant[CASE NUMBER] They were assigned Provident Fund numbers and were also covered by Employee State Insurance Scheme[CASE NUMBER] Though the other employees who were working in the company and discharging identical duties were getting higher wages, the appellants were not being paid those wages[CASE NUMBER] Their further case is that in order to avoid payment of wages on par with the regular staff, the respondent employed a contractor and using their services through the said contractor[CASE NUMBER] While so, one [ENTITY], styling himself as a contractor, issued a notice of one month to the appellants on 30[CASE NUMBER]10[CASE NUMBER]1991 indicating the notice for termination of their services[CASE NUMBER] In fact, the said [ENTITY] had no connection with the appellants, as they were not appointed by him[CASE NUMBER] However, he was bringing wage packets of the appellants once in a month or once in two months along with officers of the respondent company[CASE NUMBER] Prior to the said contractor, some other contractors were also doing like that[CASE NUMBER] However, there is no employer and employee relationship between them and the said contractors[CASE NUMBER] After receipt of the said notice, the appellants raised an industrial dispute before the Deputy Commissioner of Labour, Visakhapatnam[CASE NUMBER] Pending the dispute, the appellants filed [CASE NUMBER] and the same was disposed of on 29[CASE NUMBER]11[CASE NUMBER]1991 at the admission stage[CASE NUMBER] It is their further case that though the Government issued G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER]No[CASE NUMBER]375, Labour, Employment, Nutrition & Technical Education (Lab[CASE NUMBER]II) Department, dated 05[CASE NUMBER]06[CASE NUMBER]1981, prohibiting employment of contract labour in the jobs performed by the appellants, the respondent has been continuing the same[CASE NUMBER] They rendered continuous service of more than one year preceding the date of termination and termination of their services is illegal[CASE NUMBER] Accordingly, when the conciliation failed, on reference by the Government in [CASE NUMBER][CASE NUMBER][CASE NUMBER], dated 06[CASE NUMBER]04[CASE NUMBER]1993, the reference was registered as [CASE NUMBER] by the Industrial Tribunal-cum-Labour Court, Visakhapatnam (for short, the Labour Court)[CASE NUMBER]
4[CASE NUMBER] The respondent filed a counter stating that the appellants were never their employees and their work did not fall within the 3 categories of work for which the engagement of contract labour was prohibited in G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER]No[CASE NUMBER]375 dated 05[CASE NUMBER]06[CASE NUMBER]1981[CASE NUMBER] It is also their case that the water pumping operations do not form part of the factory[CASE NUMBER] The jobs alleged to have been performed by the appellants at the site were not electrical wiring and winding jobs, casual odd jobs or canteen operations which were prohibited under the said Government Order[CASE NUMBER] The appellants are the employees of the contractor and they are not entitled for any relief against the respondent[CASE NUMBER] The infilteration bore wells, where the appellants were claiming to be employed, were installed only after 24[CASE NUMBER]05[CASE NUMBER]1988 and the first appellant was appointed by a contractor, [ENTITY] and the second appellant by another contractor, [ENTITY][CASE NUMBER] The appellants continued to work as the employees of the contractors even though the contractors were changed[CASE NUMBER] The appellants became the members of the Employees Provident Fund and the Employees State Insurance in view of the legal obligation cast on the contractors[CASE NUMBER]
5[CASE NUMBER] The Labour Court framed 8 points for consideration[CASE NUMBER] On behalf of the workmen, W[CASE NUMBER]Ws[CASE NUMBER]1 to 3 were examined and Exs[CASE NUMBER]W[CASE NUMBER]1 to W[CASE NUMBER]32 were marked[CASE NUMBER] On behalf of the management, M[CASE NUMBER]Ws[CASE NUMBER]1 to 5 were examined and documents Exs[CASE NUMBER]M[CASE NUMBER]1 to M[CASE NUMBER]240 were marked[CASE NUMBER] Exs[CASE NUMBER]X[CASE NUMBER]1 and X[CASE NUMBER]2 were also marked[CASE NUMBER] The Labour Court, by its Award dated 24[CASE NUMBER]01[CASE NUMBER]1998, directed the respondent to absorb the appellants as regular employees with all the concomitant benefits as their demand forming the subject matter of this reference is justified[CASE NUMBER]
6[CASE NUMBER] Challenging the said Award of the Labour Court, the management filed [CASE NUMBER] and the learned single Judge, by order dated 12[CASE NUMBER]10[CASE NUMBER]2007, allowed the Writ Petition by holding that the findings arrived at by the Labour Court that two individuals are an association between themselves, as such, the dispute raised by them is an industrial dispute and the Government had rightly referred the same to it and it can entertain the same and adjudicate upon are not correct[CASE NUMBER] Accordingly, the learned single Judge set aside the Award and gave liberty to the appellants to workout their remedies as available under law[CASE NUMBER] He did not record the findings on other issues[CASE NUMBER] Challenging the same, the present Writ Appeal was filed[CASE NUMBER]
7[CASE NUMBER] In view of the above facts, the only point that arises for consideration is whether the reference of the dispute by the Government at the instance of the appellants (two workmen) is correct and valid[CASE NUMBER]
8[CASE NUMBER] Sri [ENTITY], learned Senior Counsel appearing for the appellants, contended that the employment where the appellants were discharging their duties was prohibited by G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER]No[CASE NUMBER]375 dated 05[CASE NUMBER]06[CASE NUMBER]1981 and in view of their continuous work, they are entitled for regularisation of their services[CASE NUMBER]
9[CASE NUMBER] The learned Senior Counsel for the appellants contended that it is not necessary that a union should espouse the cause of a workman and if the workmen are more than one, it is sufficient for making a reference and the [ACT] gives emphasis on workmen and not on the union[CASE NUMBER] He relied on [PRECEDENT] , [PRECEDENT] [PRECEDENT] [CASE NUMBER]
10[CASE NUMBER] Sri [ENTITY], learned Senior Counsel appearing for the respondent, on the other hand, contended that the view taken by the Labour Court was not correct and the learned single Judge considered various decisions and came to the conclusion that the reference by the Government at the instance of two workmen was bad and since the said finding was based on the decisions of the Supreme Court, no interference with the order of the learned single Judge is warranted[CASE NUMBER] He submitted that no relationship of employer and employee existed between the appellants and the respondent as they were admittedly employed through a contractor and hence reference at their instance cannot be called as an industrial dispute and relied on [PRECEDENT] for his submissions[CASE NUMBER] He also submitted that, after failure of consideration, the appellants should have resorted to the provisions under [SECTION] of the Act instead of Government invoking [SECTION] of the Act[CASE NUMBER] He relied on [PRECEDENT] , [PRECEDENT] [PRECEDENT] , [PRECEDENT] , [PRECEDENT] , a single Judge decision of this Court in [CASE NUMBER] dated 07[CASE NUMBER]10[CASE NUMBER]1963, [PRECEDENT] , [PRECEDENT] and a Division Bench judgment of this Court in [CASE NUMBER] dated 25[CASE NUMBER]06[CASE NUMBER]2007[CASE NUMBER] He also submitted that since the reference was wrongly made by the Government, the Award also should go[CASE NUMBER] He also submitted that if it is the case of the appellants that they were employed by a contractor in respect of the prohibited categories, prohibited under G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER]No[CASE NUMBER]375 dated 05[CASE NUMBER]06[CASE NUMBER]1981, their remedy was different and they should not have resorted to the provisions of the Act[CASE NUMBER]
11[CASE NUMBER] The case of the appellants is that they have been working since 10[CASE NUMBER]09[CASE NUMBER]1984 and 03[CASE NUMBER]12[CASE NUMBER]1982 as Pump Operator and Electrician respectively attending to the maintenance of infilteration bore wells located at 6 kilometres away from the factory[CASE NUMBER] The case of the respondent is that infilteration bore wells plant was established after 24[CASE NUMBER]05[CASE NUMBER]1988 only and hence the appellants cannot claim that they have been employed prior to that date, even assuming that they were working as such[CASE NUMBER] The payment of wages through a contractor was not disputed either by the appellants or by the respondent[CASE NUMBER] As per the case of the workmen when the contractor issued a notice on 30[CASE NUMBER]10[CASE NUMBER]1991, the appellants raised a dispute before the Deputy Commissioner of Labour, Visakhapatnam and pending the same, they filed [CASE NUMBER][CASE NUMBER] In the said Writ Petition, the contractor was made a party, fourth respondent[CASE NUMBER] This Court, by order dated 29[CASE NUMBER]11[CASE NUMBER]1991, disposed of the Writ Petition at the admission stage as follows:
Petitioners claim to be the workmen effectively under the 3rd respondent, but were engaged through the 4th respondent, an independent contractor[CASE NUMBER] That contractor has terminated their service by notice dated 30-10-1991[CASE NUMBER] The termination is to be effective from 4-12-1991[CASE NUMBER] Petitioners submit that the contract labour system having been abolished, they are entitled to be treated as workmen of the 3rd respondent[CASE NUMBER] Petitioners have challenged the termination of their service by filing representations before the Deputy Commissioner of Labour, 2nd respondent, on 21-10-1991 and 5-11-1991[CASE NUMBER] Petitioners submit that the 2nd respondent has not initiated conciliation proceedings and as a consequence of the delay on the part of the 2nd respondent, they are likely to be thrown out of service[CASE NUMBER] It is in these circumstances that the petitioners seek issue of a writ of mandamus directing the 1st respondent to refer to the Industrial Tribunal, Visakhapatnam for adjudication the dispute between the petitioners and respondents 3 and with regard to their absorption in the direct employment of the 3rd respondent[CASE NUMBER]
2[CASE NUMBER] Government Pleader, Social Welfare, takes notices for respondents 1 and 2[CASE NUMBER]
3[CASE NUMBER] Under [SECTION] of the [ACT] (the Act, for short), the conciliation officer appointed under the Act has to initiate conciliation proceedings where any industrial dispute exist or is apprehended[CASE NUMBER] He shall try to bring about settlement without delay[CASE NUMBER] He is also obligated to investigate the dispute and all matters affecting the merits and the right settlement thereof[CASE NUMBER] He is also obligated to do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute[CASE NUMBER] In case all such efforts fail, he has to submit a report to the appropriate Government of the failure of conciliation proceedings[CASE NUMBER] On receipt of the report, it is for the appropriate Government, in this case State Government, to consider whether there is a case for reference to a Board Labour Court, Tribunal or National Tribunal and refer the matter to such Board, Court or Tribunal as the case may be[CASE NUMBER]
4[CASE NUMBER] The delay on the part of the 2nd respondent in initiating conciliation proceedings is not understandable[CASE NUMBER]
I, therefore, direct the 2nd respondent to initiate conciliation proceedings immediately and terminate the same in accordance with the obligation, which he has under the statute, either by inducting the parties to arrive at a settlement or by submitting a report of failure of conciliation[CASE NUMBER] On receipt of such report, the State Government shall consider the same and pass appropriate order as are called for under [SECTION] of the Act[CASE NUMBER] In the meantime, it is open to the petitioners to move the Labour Court for necessary orders under [SECTION] of the Act[CASE NUMBER]
5[CASE NUMBER] Writ petition is disposed of with the above direction[CASE NUMBER] No costs[CASE NUMBER]
12[CASE NUMBER] After failure of the conciliation, the Government issued [CASE NUMBER][CASE NUMBER][CASE NUMBER], dated 06[CASE NUMBER]04[CASE NUMBER]1993, referring the following dispute between the appellants and the respondent to the Labour Court[CASE NUMBER] Whether the demand of the two workman 1[CASE NUMBER] [ENTITY], 2) [ENTITY] to absorb them as regular employees of the company by the management of [ENTITY], Visakhapatnam in view of the G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER]No[CASE NUMBER]375, dt[CASE NUMBER]5[CASE NUMBER]6[CASE NUMBER]81 is justified?
If so, to what relief the workmen are entitled?
13[CASE NUMBER] Though the said two issues were referred, the Labour Court framed as many as 8 points for consideration and one of the points is whether the reference was valid and whether the Tribunal can go into that question at all[CASE NUMBER] While dealing with the said point, the Labour Court held that two workmen can very well be recognised as an association and in any event it cannot go into the validity of the reference[CASE NUMBER] While answering the said point in favour of the workmen, the Labour Court held as follows:
16) Point No[CASE NUMBER]7: The learned counsel for the management took an objection to the very validity of this reference[CASE NUMBER] He urged this basing upon two grounds[CASE NUMBER] His first ground is that the tribunal has no jurisdiction to go beyond the reference[CASE NUMBER] In this connection here relied upon 3 decisions, [PRECEDENT] and [PRECEDENT][CASE NUMBER] There could absolutely be no quarrel with the proposition laid down in those celebrated cases[CASE NUMBER] But one nullity or two nullities coming in the way of adjudicating the matter, they can as well be held as such to brush them aside and still remain within the four corners of the reference[CASE NUMBER] That is what is being done in this case[CASE NUMBER] He next submitted that the very reference was bad as the dispute was not espoused by any trade union[CASE NUMBER] For that there is a complete answer in a Supreme Court Judgment relied upon by the workman in News Papers Limited, Allahabad and [PRECEDENT][CASE NUMBER] The Honble Supreme Court categorically held that the cause of a workman can be taken up by an unregistered association of workmen employed in the same establishment[CASE NUMBER] Here we have two workmen and the two workmen can very well be recognised as an association because they associated in between themselves to make a common cause against the management[CASE NUMBER] In that view of the matter, the objection raised is untenable[CASE NUMBER] The third point raised by the learned counsel for the management to assail the validity of the reference, is that the management was not a party to the writ petition and therefore the reference that was made in pursuance of a direction in such a writ petition that was ordered at the admission stage itself cannot be held as a competent reference[CASE NUMBER] I think there is absolutely no force in this submission[CASE NUMBER]
17) In any view of the matter, I feel that it is not competent for this court to go into the validity of the reference[CASE NUMBER] As laid down in Supreme Court 516 para 24 right column the tribunal derives its jurisdiction by the order of reference and not on the determination of a jurisdictional fact[CASE NUMBER] So the validity of reference cannot be equated with any other jurisdictional fact[CASE NUMBER] In this connection another decision of the Supreme Court in the [PRECEDENT] referred to in another case [PRECEDENT] also makes it clear that the court cannot canvass (coment or discuss) the order of reference though it can very well examine whether the subject matter of the reference is really an industrial dispute or not[CASE NUMBER]
In view of the above finding recorded by the Labour Court on the basis of the pleadings and evidence of the parties, it is necessary to examine the provisions of the [ACT] and [ACT][CASE NUMBER]
14[CASE NUMBER] [SECTION], [SECTION] and [SECTION] of the Act are relevant and they read as follows:
2 (k) "industrial dispute" means any dispute or difference between employers 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 employment or with the conditions of labour, of any person;
[SECTION][CASE NUMBER] Dismissal, etc[CASE NUMBER], of an individual workman to be deemed to be an industrial dispute:- 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 is deemed to be an industrial dispute notwithstanding that no other workman or any union of workmen is a party to the dispute[CASE NUMBER]
(2) Notwithstanding anything in [SECTION], any such workman as is specified in sub-section (1) may, make an application in the prescribed manner direct to the Labour Court for adjudication of the dispute referred to therein; and on receipt of such application, the Labour Court shall have jurisdiction to adjudicate upon any matter in the dispute, as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act; and accordingly all the provisions of the Act, shall apply in relation to such dispute as they apply in relation to any other industrial dispute[CASE NUMBER]
12[CASE NUMBER] Duties of conciliation officers[CASE NUMBER]-
5[CASE NUMBER] If, on a consideration of the report referred to in sub- section (4), the appropriate Government is satisfied that there is a case for reference to a Board, 2 Labour Court, Tribunal or National Tribunal,] it may make such reference[CASE NUMBER] Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor[CASE NUMBER]
15[CASE NUMBER] Trade Union is defined in the [ACT] and it reads as follows:
2 (h) Trade Union means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions:
Provided that this Act shall not affect
(i) any agreement between partners as to their own business;
(ii) any agreement between an employer and those employed by him as to such employment; or
(iii) any agreement in consideration of the sale of the goodwill of a business or of instruction in any profession, trade or handicraft[CASE NUMBER]
16[CASE NUMBER] In view of the above rival contentions and in view of the Award, which was set aside by the learned single Judge, the reliance on the provisions of the [ACT] (for short, Act of 1970), loses its significance though they have got some relevance to the facts of the present case[CASE NUMBER] Here we are not examining the factual aspect of the matter, but our examination is confined only to the reference made by the Government at the instance of two workmen of a dispute relating to them to the Labour Court in exercise of the powers under [SECTION] of the Act[CASE NUMBER] Hence, the reliance placed by the learned Senior Counsel for the appellants in Steel Authority of India Ltds case (supra), ONGC Ltds case (supra) and Gujrat Electricity Boards case (supra) need not be dealt with, as they relate to the provisions of the Act of 1970[CASE NUMBER] The only decision that has to be examined is Newspapers Ltd[CASE NUMBER], Allahabads case (supra)[CASE NUMBER] The facts in the said case are different[CASE NUMBER] The Newspapers Limited, which is a publisher of 3 newspapers, retrenched the services of respondents 3 to 5 therein[CASE NUMBER] Their dispute was referred by the Government, whereupon the Labour Court passed an Award in favour of the retrenched employees on the ground that the management has not followed the principles of first come last go[CASE NUMBER] The appeal against the said Award also failed[CASE NUMBER] Pending the appeal, the junior most workmen were also removed and they filed a Writ Petition challenging the Award of reinstatement of their seniors[CASE NUMBER] The management also filed a Writ Petition challenging the appellate order[CASE NUMBER] Both the Writ Petitions were dismissed by a learned single Judge[CASE NUMBER] Both went in appeal and the Division Bench dismissed both the appeals[CASE NUMBER] The management carried the matter to the Supreme Court[CASE NUMBER] Before the Supreme Court, the management raised the point that the dispute does not come within the meaning of industrial dispute as it was not sponsored either by any union or even by a body of persons[CASE NUMBER] The Supreme Court negatived the said contention in view of the finding recorded by both the Courts below, who held that there was an association known as Leader Press Karmachari Sangh and the cause of the workmen was sponsored by the said association[CASE NUMBER] When a further point was raised stating that the said association was an unregistered one, the said point was also negatived and it was held that it is not necessary that it should be a registered body, but that body of workmen either acting through their union or otherwise should sponsor workmens case[CASE NUMBER] Hence, the ratio laid down in the said case is that even in respect of three workmen who were before the Supreme Court as respondents in view of the espousal of their case by an unregistered union, it was held that the reference made by the Government was valid[CASE NUMBER] In the instant case, there is neither a registered trade union or an unregistered trade union or a body of persons, who espoused the cause of the appellants herein[CASE NUMBER] Hence, the decision relied on by the learned Senior Counsel for the appellants is clearly distinguishable and does not apply to the facts of the present case[CASE NUMBER]
17[CASE NUMBER] Even after brushing aside the case of the appellants based on the above decision, on the facts of that case, we have to independently examine whether the reference by the Government at the instance of two workmen in the instant case was valid or not[CASE NUMBER] The learned single Judge disposed of [CASE NUMBER] dated 29[CASE NUMBER]11[CASE NUMBER]1991 at the admission stage merely reiterating the procedure envisaged in the provisions of the Act and in the last line of the said order, he made it clear to the appellants to move the Labour Court for necessary orders under [SECTION] of the Act[CASE NUMBER] Inspite of the same, the appellants did not take any action[CASE NUMBER] After a reference by the Government, the matter was taken up by the Labour Court which dealt with the point as aforesaid[CASE NUMBER] It mainly relied on the Newspapers Limiteds case (supra) for coming to the said conclusion and we have examined the said case as above[CASE NUMBER] Hence, we are of the opinion that the Labour Court came to the wrong conclusion based on misreading of the decision of the Supreme Court in Newspapers Limiteds case (supra)[CASE NUMBER]
18[CASE NUMBER] Now we consider the decisions cited on behalf of the respondent[CASE NUMBER] In Food Corporation of Indias case (supra), the relationship between the workmen and the employer was considered in the light of introduction of system of direct payment by employer by abolishing contract labour system and it was held that consequent to the introduction of the said system, the workmen acquired status of direct workmen of the employer and reintroduction of contract labour system after its abolition and introduction of system of direct payment by employer was held bad and it amounts to termination of their services which would be invalid in the absence of compliance with law[CASE NUMBER]
19[CASE NUMBER] In Bombay Union of Journalistss case (supra), it was held that an individual dispute cannot be regarded as an industrial dispute within the meaning of [SECTION] of the Act[CASE NUMBER] The Supreme Court held as follows:
7[CASE NUMBER] The terms of reference by the Government of Bombay under [SECTION] indicate that the dispute was primarily between The Hindu, Bombay and the appellant a single employee relating to his individual claim in which the other employees of The Hindu, Bombay, were not directly interested[CASE NUMBER] In Central Provinces Transport Services Ltd[CASE NUMBER] v[CASE NUMBER]
Raghunath Gopal Patwardhan {(1956) SCR 956}, this Court after setting out the three possible views on the question whether a dispute by an individual workman may be regarded as an industrial dispute within the meaning of [SECTION] of the [ACT] observed, The preponderance of judicial opinion is clearly in favour of the last of the three views, stated above (i[CASE NUMBER]e[CASE NUMBER] 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[CASE NUMBER] Notwithstanding that the language of [SECTION] is wide enough to cover a dispute between an employer and a single employee, the scheme of the [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 an adjudication under the Act, when the same had not been taken up by the Union or a number of workmen[CASE NUMBER]
This view was reiterated in [PRECEDENT][CASE NUMBER] Therefore, 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 individual workman[CASE NUMBER]
8[CASE NUMBER] The dispute, in the present case, being prima facie, an individual dispute, in order that it may become an industrial dispute it bad to be established that it had been taken up by the Union of employees of The Hindu, Bombay, or by an appreciable number of employees of The Hindu, Bombay[CASE NUMBER] Counsel for the appellant contended that the dispute was supported by the Bombay Union of Journalists of which [ENTITY] was a member and that, in any event, it was supported by [ENTITY] and [ENTITY], who were the only other employees in this establishment[CASE NUMBER] He also contended that in any event the dispute having been taken up by the Indian Federation of Working Journalists after it was referred to the Tribunal, it had become an industrial dispute[CASE NUMBER]
When a resolution passed by the Indian Federation Working Journalists, after reference, supporting the case of the workmen was produced before the Supreme Court, the Supreme Court held that 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 even of workmen interested in the dispute[CASE NUMBER] It was held that the subsequent withdrawal of support will not take away the jurisdiction of an Industrial Tribunal[CASE NUMBER] Hence, it is clear that as on the date of reference, it should be a dispute involving a group of workmen or espoused by the Union[CASE NUMBER] The said decision was followed in W[CASE NUMBER]I[CASE NUMBER]Match Co[CASE NUMBER]s case (supra)[CASE NUMBER]
21[CASE NUMBER] In Gandhara Transport Co[CASE NUMBER]s case (supra), it was held that espousal of the cause of dismissed workmen by only one- twelfth of the employees was not an espousal by an appreciable or substantial body of workmen[CASE NUMBER] The Constitution Bench of the Supreme Court in Indian Cable Co[CASE NUMBER] Ltd[CASE NUMBER]s case (supra), held as follows:
(3) It is next contended for the appellant that the disputes raised by the respondent-workmen were not industrial disputes as defined in the Act but merely individual disputes, and that in consequence the Government had no power to them to a tribunal under [SECTION] of the Act[CASE NUMBER] [SECTION] defines industrial dispute as meaning "'any dispute or difference between employers 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 employment or with the conditions of labour, of any person[CASE NUMBER]" According to the appellant a dispute can be an industrial dispute within this definition only when it is raised by workmen and not merely by one of them[CASE NUMBER] The respondents, on the other hand, contend that on its true construction, [SECTION] will comprehend even a dispute between an employer and a single workman, and the observations in R v[CASE NUMBER]
National Arbitration Tribunal {(1951) 2 AIR 828, 831} are relied on as supporting that position[CASE NUMBER] There the question discussed was whether the expression "dispute or difference between employers and workmen" in [SECTION] of the [ACT], would cover a dispute between an employer and one workman, and Lord [ENTITY], C[CASE NUMBER] J[CASE NUMBER], answered it in the affirmative, basing himself on [SECTION] of the [ACT], which provides that words in the plural shall include the singular[CASE NUMBER] The argument is that, having regard to the rule of interpretation embodied in [SECTION] of the [ACT], the ratio of this decision is equally applicable to the construction of [SECTION] and that it must be held to include a dispute between an employer and a single workman[CASE NUMBER] This question however is not res integra[CASE NUMBER] It has been considered in a number of cases in this Court and decided adversely to the present contention of the respondents[CASE NUMBER] In [PRECEDENT] the point in controversy was whether an individual dispute was an industrial dispute within [SECTION] of the Act[CASE NUMBER] After stating that three divergent views had been expressed on the question and that the preponderance of judicial opinion was in favour of the view that a dispute between an employer and a single employee could not per se be an industrial dispute but that it might become one if it was taken up by a Union or a number of workmen, this Court observed:
"there is considerable reason behind it[CASE NUMBER] Notwithstanding that the language of [SECTION] is wide enough to cover a dispute between an employer and a single employee, the scheme o f the [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 an adjudication under the Act, when the same had not been taken up by the Union or a number of workmen[CASE NUMBER]"
(p[CASE NUMBER] 964)[CASE NUMBER]
This view was adopted in [PRECEDENT] where the point arose directly for decision[CASE NUMBER] Discussing the meaning of the expression "industrial dispute" in the [ACT] which is the same as [SECTION] of the Act, this Court observed that though on the rule of construction laid down in [SECTION] of the [ACT], the plural would include the singular, in the context of the, legislation, the word "workmen" did not include "a workman", and that a dispute between an employer and a single workman did not fall within the definition of industrial dispute[CASE NUMBER] Both these decisions were followed by this Court in [PRECEDENT] and the law was thus stated:-
"Therefore, 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"[CASE NUMBER] (p[CASE NUMBER] 439)[CASE NUMBER]
The respondents seek to distinguish these decisions on the ground that in all of them the dispute was raised by a single workman, whereas in the present case six of the workmen have joined in making a demand[CASE NUMBER] They urge that a dispute ceases to be an individual dispute and becomes an industrial dispute when more than one workman, joins in it[CASE NUMBER] It is true that in the decisions cited above the dispute was raised by a single workman[CASE NUMBER] But the reasons on which these decisions rest, viz[CASE NUMBER], that the policy behind the [ACT] is to protect workmen as a class against, unfair labour practices and not to enact special provisions for enforcing the claims of individual workmen, would equally militate against the contention that a dispute which is essentially individual in character would become an industrial dispute merely because two persons have joined in it[CASE NUMBER] What imparts to the dispute of a workman the character of industrial dispute is that it affects the rights of the workmen as a That is why the above decision lay down that the, dispute of a single workman would become an industrial dispute when it is sponsored by a Union or by a considerable number of workmen; for it (,an then be taken that it does affect them as a class[CASE NUMBER] No hard and fast rule can laid down as to the number of workmen whose association will convert an individual into an industrial dispute[CASE NUMBER] That must depend on the facts of each case, and the nature of the dispute[CASE NUMBER] The group might even be a minority, as held by this Court in [PRECEDENT][CASE NUMBER] But it must be such as to lead to an inference that the dispute is one which affects workmen as a class[CASE NUMBER]
22[CASE NUMBER] A Division Bench of this Court in Employers of Express Newspapers (Private) Ltd[CASE NUMBER]s case (supra), considered the issue and held that the dispute between an employee and employer is an individual dispute and it cannot be branded as an industrial dispute and they have to be enforced before ordinary Courts[CASE NUMBER] The industrial dispute mentioned in [SECTION] of the Act affects interest of large group of workmen[CASE NUMBER] In the said case also, two workmen were involved[CASE NUMBER] However, in view of the subsequent amendment made to the Act by introducing [SECTION], the recourse of the individual workman to approach the other Courts is avoided and they were given liberty to approach the Labour Court under the said provision[CASE NUMBER] In Tirupathi Cotton Mills Ltd[CASE NUMBER]s case (supra), a learned single Jude of this Court considered the competency of the Labour Court under [SECTION] of the Act in respect of an individual workman[CASE NUMBER] The learned single Judge held as follows:
9[CASE NUMBER] In [PRECEDENT] the Madras High Court, on a review of the various earlier full age summarised the position of law thus:
It is new well settled that as individual dispute in order to be an industrial dispute must have the collective support from a considerable or substantial number of workmen in the establishment[CASE NUMBER]
What a substantial or considerable section would be in a given case would, of course; depend up on the particular facts[CASE NUMBER]
That an individual dispute is supported by other workman will also have to be established either in the form of a resolution of a union of which the workman may be members or of the workmen themselves who support the dispute, or in any other manner[CASE NUMBER]
From the mere fact that a general union at where instance an individual workmen is referred for adjudication; has on its rolls a few of the workmen in the establishment as its members, it could not be assumed that the individual dispute was converted into a collective dispute; In such a case not only should it be proved that the workmen who are members of the general union formed a substantial or a considerable section of the workmen of the particular mills but also that in order to vest the dispute with the character of an industrial dispute, these members participated in or acted together and arrived at an understanding either by a resolution or by other means, and collectively supported on the date of the reference the demand or the cause of an individual dispute[CASE NUMBER]
That with respect correctly represents the position as established by the authorities on the subject[CASE NUMBER]
23[CASE NUMBER] A reading of the above cases clearly shows that unless an industrial dispute involving a class of workmen was raised by a body of workmen whether registered or unregistered, the Labour Court is precluded from considering the reference[CASE NUMBER] In this case, though a reference was made in respect of two workmen, the issue was taken up by the Labour court and an Award was passed[CASE NUMBER] The Award was rightly set aside by the learned single Judge[CASE NUMBER] The appellants, though were given an opportunity by the learned single Judge in [CASE NUMBER], did not avail the remedy under [SECTION] of the Act and instead they pursued the proceedings before the Labour Court[CASE NUMBER]
24[CASE NUMBER] In view of the settled legal position, we are of the view that the Award passed by the Labour Court is unsustainable in law, the order of the learned single Judge does not warrant interference and accordingly we dismiss the appeal[CASE NUMBER] Miscellaneous petitions, if any, pending in this Writ Appeal shall stand disposed of[CASE NUMBER]
[ENTITY], J [ENTITY], J Date: 01[CASE NUMBER]05[CASE NUMBER]2015