Case: Rustom &amp; Hornsby (1) Ltd Vs. T. B. Kadam

is not an industrial dispute unless it is sponsored by the union to which he belongs or a group of workmen. The charge made by S. 2A is that in certain cases such a dispute need not be so sponsored and it will still be deemed an industrial dispute. Supposing in this very case a labour union or a group of workmen had sponsored the case of the respondent before the reference was made, such a reference would have been valid. All that S. 2A has done is that by legislative action such a dispute is deemed to be an industrial dispute even where it is not sponsored by a labour union or a group of workmen. What a labour union or a group of workmen can do the law is competent to do. The only question for consideration in considering the validity of a reference is whether there was or apprehended an industrial dispute when the reference was made. If there was an industrial dispute or an industrial dispute was apprehended, even though the facts giving rise to that dispute might have arisen before the reference was made the reference would still be valid. It is to be borne in mind that every reference would be made only sometime after the dispute has arisen. In Birla Brothers, Ltd. v. Modak I. L. R. 1948 2 Cal. 209, it was pointed out that though the Industrial Disputes Act came into force in 1947, reference of an industrial dispute based on the facts which arose before that Act came into force is a valid reference. The same reasoning would apply to a reference of a dispute falling under S. 2A even though the facts giving rise to that dispute arose before that section came into force. The decision in Birla Brothers case (supra) was approved by this Court in its decision in Jahiruddin v. Model Mills, Nagpur, [1966-I L.L.J. 430]. These two decisions clearly establish that the test for the validity of a reference under S. 10 is whether there is in existence a dispute on the day the reference was made and there was no question of giving retrospective effect to the Act. We find that that is the view taken by the Delhi High Court in National Productivity Council v. S. N. Kaul, [1969-II L.L.J. 186], by the Punjab & Haryana High Court in Shree Gopal Paper Mills Ltd. v. The State of Haryana, (1968) Lab. I.C. 1259. The view of the High Court of Mysore in P. Janardhana Shetty v. Union of India, [1970-II L.L.J. 738], to the contrary is not correct.7. Coming now to the other points in the case : the decisions of this Court establish clearly that when a workmen is dismissed as a result of a domestic enquiry the only power which the Labour Court has is to consider whether the enquiry was proper and if it was so no further question arises. If the enquiry was not proper the employer and the employee has to be given an opportunity to examine their witnesses. It is not the duty of the enquiry officer in this case to seek permission of the police constables superiors. It was the respondents duty to have him properly summoned. He did not even apply to the enquiry officer requesting him to seek the permission of the police constables superiors. It is, therefore, wrong on the part of the Labour Court to have held that the enquiry against the respondent was not a proper enquiry. Once this conclusion is reached there was no room for the summoning and examination of the police constable by the Labour Court. The question regarding the jurisdiction exercised by an industrial Tribunal in respect of a domestic enquiry held by the management against a worker has been elaborately considered by this Court in its decision in D. C. N. v. Ludh Budh Singh, [1972-I L.L.J. 180], and the principles that emerge out of the earlier decisions of this Court have been set out in that decision. The decision of this Court in Workmen v. Firestone Tyre & Rubber Co., [1973-I L.L.J. 278], also sets out the principles that emerge from the earlier decisions. In Tata Oil Mills Co. Ltd. v. Its Workmen, [1964-II L.L.J. 113], it was argued that where the employee is unable to lead his evidence before the domestic Tribunal for no fault of his own, an opportunity should be given to him to prove his case in proceedings before the Industrial Tribunal. The Court held that this contention was not well-founded. It was pointed out that the enquiry officer gave the employee ample opportunity to lead his evidence and the enquiry had been fair. It was also pointed out that merely because the witnesses did not appear to give evidence in support of the employees case it could not be held that he should be allowed to lead such evidence before the Industrial Tribunal and if such a plea was to be upheld to no domestic enquiry would be effective and in every case the matter would have to be tried afresh by the Industrial Tribunal. It was pointed out that findings properly recorded at the enquiries fairly conducted were binding on the parties, unless it was known that the said findings were perverse, or were not based on any evidence. We are not able to agree with the Labour Court in this case that the findings of the domestic enquiry are either perverse or not based on any evidence.8. We, therefore, come to the conclusion that there was no failure on the part of the enquiry officer to give a reasonable opportunity to the respondent workman, that the enquiry was fair and the Labour Court had, therefore, no right to examine the witness on behalf of the workman and based on that evidence to upset the finding arrived at the domestic enquiry. We also hold that the punishment imposed in the circumstances is one in which the Labour Court cannot interfere.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are not able to accept this contention. Section 2A is in effect a definition section. It provides in effect that what would not be an industrial dispute as defined in S. 2(k) as interpreted by this Court would be deemed to be an industrial dispute in certain circumstances. As was pointed out by this Court in Chemicals & Fibres of India Ltd. v. D. S. Bhoir, [1975-II L.L.J. 168], the definition could as well have been made part of cl. (k) of S. 2 instead of being put in as a separate section. There is, therefore, no question of giving retrospective effect to that section in making the reference which resulted in the award underonly relevant factor for consideration in making a reference under S. 10 is whether an industrial dispute exists or is apprehended. There cannot be any doubt that on the day the reference was made in the present case an industrial dispute as defined under S. 2A did exist. Normally the dispute regarding an individual workman is not an industrial dispute unless it is sponsored by the union to which he belongs or a group of workmen. The charge made by S. 2A is that in certain cases such a dispute need not be so sponsored and it will still be deemed an industrialThese two decisions clearly establish that the test for the validity of a reference under S. 10 is whether there is in existence a dispute on the day the reference was made and there was no question of giving retrospective effect to the Act. We find that that is the view taken by the Delhi High Court in National Productivity Council v. S. N. Kaul, [1969-II L.L.J. 186], by the Punjab & Haryana High Court in Shree Gopal Paper Mills Ltd. v. The State of Haryana, (1968) Lab. I.C. 1259. The view of the High Court of Mysore in P. Janardhana Shetty v. Union of India, [1970-II L.L.J. 738], to the contrary is not correct.7. Coming now to the other points in the case : the decisions of this Court establish clearly that when a workmen is dismissed as a result of a domestic enquiry the only power which the Labour Court has is to consider whether the enquiry was proper and if it was so no further question arises. If the enquiry was not proper the employer and the employee has to be given an opportunity to examine their witnesses. It is not the duty of the enquiry officer in this case to seek permission of the police constables superiors. It was the respondents duty to have him properly summoned. He did not even apply to the enquiry officer requesting him to seek the permission of the police constables superiors. It is, therefore, wrong on the part of the Labour Court to have held that the enquiry against the respondent was not a proper enquiry. Once this conclusion is reached there was no room for the summoning and examination of the police constable by the Labour Court. The question regarding the jurisdiction exercised by an industrial Tribunal in respect of a domestic enquiry held by the management against a worker has been elaborately considered by this Court in its decision in D. C. N. v. Ludh Budh Singh, [1972-I L.L.J. 180], and the principles that emerge out of the earlier decisions of this Court have been set out in that decision. The decision of this Court in Workmen v. Firestone Tyre & Rubber Co., [1973-I L.L.J. 278], also sets out the principles that emerge from the earlier decisions. In Tata Oil Mills Co. Ltd. v. Its Workmen, [1964-II L.L.J. 113], it was argued that where the employee is unable to lead his evidence before the domestic Tribunal for no fault of his own, an opportunity should be given to him to prove his case in proceedings before the Industrial Tribunal. The Court held that this contention was not well-founded. It was pointed out that the enquiry officer gave the employee ample opportunity to lead his evidence and the enquiry had been fair. It was also pointed out that merely because the witnesses did not appear to give evidence in support of the employees case it could not be held that he should be allowed to lead such evidence before the Industrial Tribunal and if such a plea was to be upheld to no domestic enquiry would be effective and in every case the matter would have to be tried afresh by the Industrial Tribunal. It was pointed out that findings properly recorded at the enquiries fairly conducted were binding on the parties, unless it was known that the said findings were perverse, or were not based on any evidence. We are not able to agree with the Labour Court in this case that the findings of the domestic enquiry are either perverse or not based on any evidence.8. We, therefore, come to the conclusion that there was no failure on the part of the enquiry officer to give a reasonable opportunity to the respondent workman, that the enquiry was fair and the Labour Court had, therefore, no right to examine the witness on behalf of the workman and based on that evidence to upset the finding arrived at the domestic enquiry. We also hold that the punishment imposed in the circumstances is one in which the Labour Court cannot interfere.