In the High Court of Judicature at Madras Dated: 16.04.2008 Coram The Honourable Mr.JUSTICE K.CHANDRU Writ Petition Nos.10850 of 1997 and 1430 of 1999 The Management of Sri Sakthi Textiles Ltd., Pollachi – 642 001. .... Petitioner in W.P.No.10850/97 & R2 in W.P.No.1430/1999 The Secretary Jeeva Panchalai Thozhillar Sangam 62, Karikali Ammal Koil Street, Pollachi – 642 001. .... Petitioner in W.P.No.1430/99 Vs. 1. The Presiding Officer, Industrial Tribunal, Madras – 104. .... Respondent in both W.Ps. 2. The Secretary, Jeeva Panchalai Thozhilalar Sangam No.40, Father Randi Street, R.S.Puram, Coimbatore. 3. The Secretary, Kovai Jilla Mill Thozhilalar Sangam (AITUC) Katoor, Coimbatore – 641 009. 4. The Secretary, Desia Panchalai Employees Union (INTUC) 621, Trichy Road, Ramanathapuram, Coimbatore. 5. The Secretary, Kovai Periyar Mavatta Dravida Panchalai Thozhilalar Sangam, Cheran Palace, Gopalapuram, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 6. The Secretary, Desiya Panchalai Thozhilalar Sangam (NLO) Trichy Road, Ramanathapuram, Coimbatore. .... Respondents in W.P.No.10850/97 W.P.No.10850/1997: PETITION under Article 226 of The Constitution of India for issuance of Writ of Certiorari to call for the records in I.D.No.89 of 1992 on the file of the Industrial Tribunal, Madras – 104, the first respondent herein and quash that portion of the award dated 3.1.1997 through which the first respondent has held that the second respondent has representative capacity to espouse the cause of the workmen and that the workmen are entitled to relief in respecto f issue Nos.1, 2, 3 and 8. For Petitioner : Mr.M.R.Raghavan For Respondents 2 to 6 : Mr.K.M.Ramesh W.P.No.1430/1999: PETITION under Article 226 of The Constitution of India for issuance of Writ of Certiorari to call for the records in I.D.No.89 of 1992 on the file of the Industrial Tribunal, Madras – 104, the first respondent herein and quash that portion of the award dated 3.1.1997 and published in Tamil Nadu Gazette dated 23.7.1997 relating to demands Nos. 4 to 7 in which the workers seek relief, and the first respondent/Industrial Tribunal has disallowed them. For Petitioner : Mr.K.M.Ramesh For Respondents : Mr.M.R.Raghavan ---------- C O M M O N O R D E R The Management is the writ petitioner in W.P.No.10850 of 1997 challenging the award passed by the Industrial Tribunal, Madras in I.D.No.89 of 1992 dated 3.1.1997, filed the writ petition. 2. W.P.No.1430 of 1999 is filed by the Union against a portion of the award of the Industrial Tribunal in declining to give relief to two demands raised by the Union. 3. In view of interconnectivity between the two writ petitions, they were taken up together and common order is passed. 4. The second respondent/Trade Union in W.P.No.10850 of 1997 had originally raised a dispute with reference to charter demands on 24.10.1988. Subsequently, when the failure report went to the Government, the State Government refused to refer the dispute. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, the Union filed a writ petition being W.P.No.221 of 1990 and the same was allowed. The petitioner Management filed a review Application in Review No.23 of 1991, which was rejected. It was thereafter, by G.O.(D) No.1024, Labour and Employment Department dated 9.10.1992, eight issues were referred for adjudication. The said dispute was taken on file as 89 of 1992 and notice was ordered to the parties. Only the second respondent had filed the claim statement and no other trade union functioning in the petitioner establishment came to support the cause of the second respondent union. 5. The petitioner Management filed a counter statement and in paragraph Nos.4 and 5, they have questioned the representative capacity of the second respondent Union and stated that it has got few workers as its members and it is only a minority union and was also incompetent to raise the Industrial Dispute. It was also stated that the Union had not obtained any authorisation from the workmen to take up the dispute. 6. Before the Industrial Tribunal, apart from this preliminary issue, the Management also took up the contention that between the majority workers and the Management, there were several settlements right from the year 1988 and when the second respondent raised the dispute, all the workers had received the benefits arising from the said settlement and also filed those settlements before the Tribunal, which was also marked as Exs. M.3, M.5, M.10 and they were all settlements under Section 12(3) and Ex.M.14 was a settlement under Section 18(1). Before the Tribunal, the Secretary of the second respondent Union, by name, S.Muthuswami, examined himself as W.W.1 and on the side of the petitioner Management, one witness by name, S.Shanmugam was examined as M.W.1. Documents were also filed and they were marked by both sides. During the cross examination of the second respondent Secretary, he admitted that the second respondent was a splinter union from the AITUC and started only in the year 1987 and they never sought for any recognition from the Management. When a question was put as to how many members were there in the second respondent, W.W.1 replied that such a question was irrelevant to the dispute in question. 7. Before the Industrial Tribunal, arguments were advanced both on merits as well as on the representative capacity of the Union. This issue was dealt with by the Tribunal in paragraph 16 of the award. The Tribunal exclusively referred to the decision of this Court in Workmen of Brooke Bond (India) Ltd., V. Industrial Tribunal reported in 1989 II LLN page 699 and thereafter held that since the petitioner union's existence was not questioned, it is presumed that the said Union can raise a dispute and it also stated that even a minority union can raise a dispute. After referring to the oral evidence that there are 100 workers in the second respondent Union, the Tribunal came to the conclusion on the basis of the so called https://hcservices.ecourts.gov.in/hcservices/ evidence available on record that the Union has got a representative capacity. It also referred to the decision of this court in ordering the reference and therefore held that there could be a presumption about this representative capacity. 8. This portion of the award completely misreads the legal position with reference to the representative capacity as well as authorisation that union must receive from its workmen. When a specific plea is raised by the petitioner Management in the reply statement before the Tribunal, no attempt was made by the second respondent to either produce any membership register or the subscription register from the workmen. No attempt was also made to produce the minutes of the General Body by which the Union was authorised to take up the dispute. In the absence of the same, mere relying upon the direction given by this Court to make a reference cannot absolve the obligation cast upon the second respondent. In fact at the stage of the writ petition regarding declining to refer the issue was not about the representative capacity of the Union, but the issue was whether the Government thought fit to refer the disputes raised by the Union. In any event, even after reference is made under Section 10(1) of the Act, the said reference must be a valid reference without which the Tribunal does not get any jurisdiction. Further it is not as if the said issue can be decided on the basis of pleadings between the parties and it has to be established by necessary proof produced before the Tribunal. 9. Though the judgment of this court in Brooke Bond Case held that even a minority union can raise a dispute that is not an universal proposal when the representative capacity of the Union is under dispute. In that case, before the Tribunal necessary documents were filed to show that the dispute was supported by substantial section of workmen. There the question was whether the casual labourers who are seeking regularisation was entitled to regularisation in the absence of the permanent workmen supporting them. There the Union representing the casual labourers justified before the Tribunal that they were having substantial following among that section of the workmen. In the present case, the issue is entirely different and the representative capacity of the union is questioned. The second respondent union failed to prove the same. Therefore, it is not a fit case where a reference under Section 10(1) can be maintained by a Union which had not proved its representative capacity so as to continue to maintain the dispute. 10. On this short ground the award passed by the Industrial Tribunal dated 3.1.1997 is liable to be set aside and accordingly, the same is set aside. In that view of the matter being dealt with on this issue, the other contentions raised by the parties are not gone into in W.P.No.10850 of 1997. Accordingly, W.P.No.10850 of 1997 is allowed. No costs. https://hcservices.ecourts.gov.in/hcservices/ 11. Since the award is set aside on the ground of lack of representative capacity of the second respondent Union, necessarily W.P.No.1430 of 1999 will have to be dismissed. Accordingly, W.P.No.1430 of 1999 is dismissed. No costs. Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar sl To The Presiding Officer, Industrial Tribunal, Madras – 104. + 1CC to Mr.M.R.Raghavan, Advocate, S.R.No.21438 + 1 CC to Mr.K.M.Ramesh, Advocate, S.R.No.21479 W.P.Nos.10850 of 1997 and 1430 of 1999 SR (CO) SRA (28/04/2008) https://hcservices.ecourts.gov.in/hcservices/