CW 1069/08 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.1069/08 The Hotel Rambag Palace Hotel Karmchari Sangthan Versus Industrial Tribunal & Ors. DATE OF ORDER : 22/07/2008 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. C.P. Sharma, for petitioner Mr. M. K. Sharma with ] Mr. Kapil M. Chandra ] for respondents Mr.Kunal Rawat with ] Mrs. Swati Bhati ] *** Instant petition has been filed by one of registered union assailing order of Industrial Tribunal, Jaipur dated 18th January, 2008 [Ann.6] whereby their application seeking permission for their impleadment as one of parties to the dispute, has been rejected while holding that a reference has been made by a recognized representative union i.e. respondent No.2 and no material has come on record which may consider the petitioner to be impleaded as one of parties to the dispute. Respondent No.2-union raised an industrial dispute with regard to disbursement of tip amount received from customers by the management. The written statement has been filed by respondent No.3. When the matter came up for recording of their evidence, the petitioner union filed CW 1069/08 [2] application Ann.1 making a request that they are also one of the registered union and for proper adjudication of the dispute, they are also required to be heard seeking permission for their impleadment which is seriously opposed by respondent No.2. So far as respondent No.3 management is concerned, it has been averred that both the unions are taking care of interest of employees and it will be appropriate if both the unions are heard, but learned Tribunal after taking note of facts observed in Para 6 while giving a reference on earlier dispute raised by petitioner union by filing CW No.7241/05, decided in January, 2006 where it was directed to hold the election by secret ballot granting representative certificate to the union strictly in accordance with the provisions of law. In compliance of order of this court, election took place through secret ballot and certificate of a representative union was granted to respondent No.2 and accordingly, dispute was raised which is pending consideration and accordingly, rejected their application. Hence, this petition. Counsel for petitioner submits that petitioner union being a registered union representing employees also of respondent No.3 CW 1069/08 [3] and since question for consideration is for disbursement of tip amount received from various customers their presence will also be necessary for proper adjudication of the dispute which has not been examined in right earnest by Tribunal. At the same time, if they are not permitted to participate, the dispute could not be finally resolved with regard to proper disbursement of tip amount. In support of his submission, counsel placed reliance on the judgment of apex court in Hochtief Gammon Vs. Industrial Tribunal [AIR 1964 SC 1746] and of this court in Manager, Atlanta Infrastructure Ltd. Vs. State of Rajasthan [2007 LAB.I.C. 162]. Counsel for respondent No.2, on the other hand, submits that they being representative union in terms of Section 9(d) of State amendment under Industrial Disputes Act, 1947 espousing cause of large number of employees and presence of petitioner is not required at all and no material has been placed on record which may show that their presence is also required for proper determination of dispute raised by them for consideration and for adjudication. In absence whereof, Tribunal has not committed any error in rejecting their application. CW 1069/08 [4] Counsel for respondent No.3 submits that since dispute relates to disbursement of tip amount irrespective of the fact that which union has raised dispute it will be appropriate if both the registered unions are being permitted to make their submissions, that certainly can have a better appreciation for adjudication of the dispute in question. I have considered the submission of counsel for parties and with their assistance examined the material on record. Fact remained uncontroverted that respondent No.2 is a registered representative union on whose behest dispute was raised and is pending adjudication before Tribunal. Petitioner union is also a registered union representing the employees of respondent No.3. The question under consideration which has been raised at the behest of respondent No.2 pending adjudication before Tribunal is with respect to disbursement of tip amount received from various customers by the management of the hotel. It is true that impleadment is necessary for better appreciation and adjudication of the CW 1069/08 [5] dispute where all parties be heard, before the authority comes to a final conclusion in resolving the dispute. In the instant matter, certainly dispute has been raised at the behest of respondent No.2, but looking to the nature of dispute pending adjudication, the respondent No.2 will certainly take care of interest of its employees being a representative union, but at the same time, petitioner who is also a registered union representing employees also be in a position to clarify with regard to disbursement of tip amount which may apprise to Tribunal for proper adjudication of the dispute in question. If petitioner will not be permitted to participate and observation comes by Tribunal at the final stage of the dispute certainly that will be binding not on the employees to whom respondent No.2 is representing but will be binding on all the employees irrespective of the fact through whom they are being represented and this court is of the opinion that if petitioner union is also being allowed to be impleaded and opportunity is afforded, it will certainly make proper adjudication of the dispute which will be CW 1069/08 [6] binding upon the employees irrespective of being represented by either union and the learned Tribunal will also be in a position to examine the contention of both the unions at the same time plea of the management also while final adjudication. Apex court in Hochtief Gammon Vs. Industrial Tribunal [supra] observed as under: “6.In this connection, it is necessary to refer to s. 10 as it then stood. Section 10(1) then consisted of three clauses which read thus: - "If any industrial dispute exists or is apprehended, the appropriate Government may, by order in writings:- (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 to Tribunal for adjudication". It is significant that so far as the reference to the Tribunal is concerned, s. 10(1)(c) empowered the appropriate Government to refer the dispute to the Tribunal, and unlike clause (b), this clause did not take within its sweep any matter appearing to be connected with or relevant to the dispute; so that in regard to the power to refer an industrial dispute to the Government Tribunal for its adjudication, the appropriate Government could make a reference of the dispute itself and was not expressly clothed with the power to refer any matter appearing to be connected with, or relevant to, such a dispute. The result of these relevant provisions clearly seems to be that if the Industrial Tribunal, while dealing with an industrial dispute, came to the CW 1069/08 [7] conclusion that persons other than those mentioned as parties to the industrial dispute were necessary for a valid determination of the said dispute, it had the power to summon them; and if such persons were summoned to appear in the proceedings, the award that the Industrial Tribunal may ultimately pronounce would be binding on them. Since in cases where persons were added as parties to an industrial dispute were likely to raise the question as to whether the joinder of the parties was justified or not, s. '18(b) required that the Tribunal should record its opinion as to whether these persons had been summoned without proper cause. Thus, we are inclined to take the view that Mr. Chatterjee is right in contending that s. 18(b) as it, originally stood, postulates that the Tribunal had an implied power to summon parties, other than parties to the industrial dispute, to appear in the proceedings before it. That naturally raises the question about the extent of this power.” This has also been examined by this court in Manager, Atlanta Infrastructure Ltd. Vs. State of Rajasthan [supra]. Accordingly, in the light of judgment [supra] this court is of the opinion that petitioner union may also be required to be heard in the matter which will certainly settle the issue pending adjudication before Tribunal in right earnest. However, it is made clear that character of the representative union of respondent No.2 shall not be disturbed. CW 1069/08 [8] Accordingly, the writ petition stands allowed. The order of Tribunal dt.18/1/08 stands set aside. Petitioner be impleaded as one of parties to the dispute. Parties are directed to appear before Tribunal on 24th July, 2008, as informed matter is coming up on that day and learned Tribunal is directed to expedite the matter. No costs. [AJAY RASTOGI], J. FRBOHRA1069CW2008 22-7.doc