Case: National Asphalt Products Constructions Company Vs. N. M. Kothari

(2) THE relevant facts leading to the present petition are as follows:(3) THEterminated services of three of its employees. An employee by name a. Raman who had joined its service onwas retrenched by the company with effect fromAnother employee by name Narashimalu who had joined its service in 1960 was dismissed from service after holding an inquiry into his misconduct with effect fromand the third employee by name Lawrence Carvalho was discharged from service with effect fromafter he had put in service for about two years. Thereafter, according to the secondviz. , the Rashtriya Mazdoor Union, they raised an industrial dispute on behalf of all the said three workmen by serving upon the company a notice of demand datedfor reinstatement of the workmen with full back wages and continuity of service. The company having not complied with the said demand, the matter was taken up in conciliation and the Conciliation Officer submitted his failure report to the Government. After receipt of the failure report, the thirdmade a reference of the industrial dispute by its order datedby which the industrial dispute came to be referred to the firstCourt. The union field a statement of claim before the Labour Court onand the company field its written statement in reply to the said statement of claim onBy the said written statement, the company raised a preliminary point that the dispute referred under the said reference order datedwas not an industrial dispute within the meaning of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act), but was only an individual dispute. It appears that thereafter the Labour Court decided to hear the said point as a preliminary point. The company thereafter field its affidavit on the said preliminary point onand in reply thereto, the union through its the General Secretary field its affidavit onAfter hearing the parties and perusing the relevant documents produced by the parties, the first respondent labour Court by its order datedheld that what was referred as per the impugned order was an industrial dispute within the meaning of the said Act. The Labour Court also held that in view of the amendment of the said Act by introduction of S. 2a, in any event the dispute would become an industrial dispute and hence the reference was tenable. It is against this order that the present petition has been field.

Court's reasoning:
(6) WE do not find any merit in this contention raised on behalf of thefor the following reasons: Admittedly, on the date of reference there were 31 employees in the service of the company. As has been stated by the General Secretary of the secondin his field before the firstCourt, all the said 31 employees had become members of the union and were on the roll of the union during the periodFor the membership periodonly five of the members had paid their subscription and the said five included Narashimalu who is concerned in the present dispute. As has been pointed out earlier, workman A. Raman was retrenched from service with effect fromworkman narashimalu was dismissed from service onand the third workman Lawrence carvalho was discharged from service with effect fromThe dispute was taken up by union by their letter addressed to the company onand the order of reference came to be made onIt would thus appear that on the date of the order of reference, all the 31 employees continued to be the members of the secondWe are not impressed by the argument advanced by Mr. Ramaswami that since only five of them had paid their membership subscription for the yearit should be held that there were no more than five employees members of the secondon the date of the reference. In law, unless it is provided otherwise in the constitution of an organisation, a person dies not cease to be a member of that organisation merely because he fails to pay his membership dues for a particular period. Mr. Ramaswami was unable to show to us that there was any such provision for the cessation of the membership of the secondon account of the failure of the persons to pay their membership dues. In the absence of such proof, we will have to hold that notwithstanding the fact that except the five, the rest did not pay their subscription for the yearthey all continued to be the members for the yearIn this view, it follows that on the date of the reference, viz. ,all the 31 employees of thewere the members of the secondand since the secondhad espoused the cause of the three workmen concerned, it was an industrial dispute within the meaning of clause (k) S. 2 of the said Act.(7) EVEN assuming for the sake of argument that Mr. Ramaswami is right in his contention that since only five out of 31 employees paid their subscription for the yearthere were only five employees who were the members of the union on the date of reference, even so we find that five out of 31 employees who espoused the cause of the three workmen of theformed a substantial number and it was sufficient to give a collective character to the dispute of the three workmen concerned. Even on that footing, we are of the view that the dispute did fall within the purview of clause (k) of S. 2 of the said Act. (8) WE are further of the view that even assuming that the dispute was not supported by any of the other workmen, it was still capable of being referred to adjudication under S. 10 of the said act, since it was an industrial dispute within the meaning of S. 2a of the said Act. The contention raised by Mr. Ramaswami relates more to the from than to the substance of the dispute, because after the amendment of the Industrial Disputes Act by addition of S. 2a, which came into force onthe distinction between a dispute or difference arising out of discharge, dismissal, retrenchment or termination of the service of an individual workman in any other manner, raised by the workman concerned and that raised on his behalf by other workmen, has no significance, so far as its reference and adjudication is concerned. It must be remembered in this connection that neither clause (k) of S. 2 nor any other provision in the said Act mentions a union of workmen or other workman in connection with the raising of a dispute. It is only the interpretation placed by the Courts on the definition "industrial dispute" given in the said clause (k) which requires that the dispute to be an industrial dispute should be a collective dispute and not an individual dispute. This was necessary because disputes between a workman or workmen on the one hand and the employer on the other, for the resolution of which the Act has been placed on the Statute book, may be of various kinds. Such disputes may relate to the general conditions of service in which all the workmen are interested or it may relate to the termination of service of a workman or workmen, in which others are not interested. If a dispute relating to the general conditions of service is allowed to be raised by an individual workman, that would defeat the very purpose and the object of the said Act, and it was to prevent this, that although the Act did not in so many words state so, the definition of the expression "industrial dispute" in the said clause (k) was interpreted to mean collective dispute espoused by a substantial number of workmen, as distinguished from individual dispute, unsupported by other workmen. Since this definition of industrial dispute was likely to lead and did lead to hardship in cases of disputes of industrial workmen arising out of termination of their services, it was necessary to make provision for raising of such disputes by individual workman, although the same were not supported by other workmen. It was to meet this need that S. 2a was introduced in the said Act. It must also be remembered in this connection that by the said S. 2a, what an individual workman is allowed to raise as an industrial dispute is only a dispute arising out of the termination of his services by either of the various modes. He cannot raise any other dispute as an industrial dispute. This being so, all that was done by S. 2a was to widen for the purpose and to the extent discussed above the definition of "industrial dispute" given in clause (k) of S. 2 of the said Act. Therefore, whether the dispute referred to in the order of reference is an industrial dispute within the meaning of clause (k) of S. 2, or S. 2a of the said Act, is of no consequence so far as the power of the Labour Court to adjudicate the same in service of concerned. In one case it will be the workmen of an employer collectively who will be a party to the dispute and in the other case, it will be the individual workman or workmen concerned. So long as the dispute is one arising out of the termination of service of an employee in one of the various manners, it will constitute an industrial dispute capable of being referred to adjudication under S. 10 of the said act.(9) THE source of power to make the reference of an individual dispute for adjudication lies in S. 10 of the said Act. There is no provision in S. 10 which required the Government to mention, while making the reference that it is doing so in connection with an industrial dispute as defined in S. 2 (k) or S. 2a of the said Act. Hence, a mere absence of reference either to S. 2 (k) or S. 2a of the Act in the order of reference will not go to show that it is not an industrial dispute within the meaning of either of the two provisions. Nor is the order of reference assailable on the ground that it does not indicate whether the dispute referred is under one or the other of the two provisions, since the law does not require the Government to do so. If a question does arise as to whether a dispute is one as defined under S. 2 (k) or S. 2a, it is for the adjudicating authority to ascertain the same from the material on record.