Case ID: 1942

Judgment:
Appeal No. 532 of 1963. Appeal by special leave from the Award dated February 9	 1962	 of the Industrial Tribunal	 Delhi in I.D. No. 294 of 1961. Sukumar Ghose	 for the appellant. section V. Gupte	 Solicitor General	 section Murthy and B. P. Maheshwari	 for the respondent. The Judgment of the Court was delivered by Gajendragadkar	 C. J. The short question of law which arises for our decision in this appeal is whether the order passed by the Delhi Administration referring the dispute between the appellants	 the workmen of M/s Dharampal Premchand	 Sau ghandhi and the respondent	 the employer	 M/s Dharampal Premchand Saughandhi	 Delhi was valid. The order of reference has been passed by the Delhi Administration under sections 10(1)(d) and 12(5) of the (No. 14 of 1947) (hereinafter called the Act). When the Industrial Tribunal	 Delhi took up this matter for hearing	 the respondent raised a preliminary objection that the reference was invalid inasmuch as the dispute referred to the Tribunal by the impugned order of reference is not an industrial dispute. but is merely an individual dispute which cannot be the subject matter of a valid reference under section 10(1) of the Act. This contention has been upheld by the Tribunal	 with the result that the Tribunal has held that it has no jurisdiction to adjudicate upon the merits of the dispute referred to it. It is against this order that the appellants have come to this Court by special leave. On behalf of the appellants	 Mr. Sukumar Ghose contends that the view taken by the Tribunal is not sound	 and that raises the question as to whether the dispute referred to the Tribunal for its adjudication in the present case can be said to be an industrial dispute within the meaning of section 2(k) of the Act. The facts which it is necessary to state for the purpose of dealing with this point are very few and they are not in dispute. The respondent is a firm which carries on business as perfumers and tobacconists in Chandni Chowk	 Delhi. On the 28th July	 1961	 the respondent passed the impugned order dismissing the services of its 18 employees. On that date	 the respondent had in its employment 45 employees. It appears that on the 16th July	 396 1961	 the 18 employees who were dismissed by the respondent had become members of the Mercantile Employees ' Association which is a registered Trade Union in Delhi. On the 29th July	 1961	 the said Association took up the cause of the dismissed employees and carried the dispute before the Conciliation Officer	 Delhi. The conciliation proceedings	 however	 failed	 and at the instance of the Association the present reference was made on the 6th September	 1961. It is in the light of these facts that we have to decide whether the dispute referred to the Tribunal for its adjudi cation is an industrial dispute within the meaning of section 2(k) of the Act or not. Section 2(k) defines an "industrial dispute" as meaning any dispute or difference between employers and employees	 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 condition of labour	 of any person. This definition shows that before any dispute raised by any person can be said to be an industrial dispute	 it must be shown that it is connected with the employment or non employment of that person. This condition is satisfied in the present case	 because the dispute is in relation to the dismissal of 18 workmen	 and in that sense	 it does relate either to their employment or non employment. The question	 however. still remains whether it is a dispute between employers and workmen. Literally construed	 this definition may take within its sweep a dispute between a single workman and his employer	 because the plural	 in the context	 will include the singular. Besides	 in the present case	 the dispute is in fact between 18 workmen on the one hand	 and their employer on the other	 and that satisfies the requirement imposed by the fact that the word "workmen" in the context is used in the plural. But the decisions of this Court have consistently taken the view that in 'order that dispute between a single employee and his employer should be validly referred under section 10 'of the Act	 it is necessary that it should have been taken up by the Union to which the employee belongs or by a number of employees. On this view	 a dispute between an employer and a single employee cannot	 by itself	 be treated as an industrial dispute	 unless it is sponsored or espoused by the Union of workmen or by a number of workmen. In other words	 if a workman is dismissed by his employer and the dismissed workman 's case is that his dismissal is wrongful	 he can legitimately have the said dispute referred for adjudication before an Industrial Tribunal under section 10(1) of the Act	 provided a claim for such a reference is supported either by the Union to which he belongs or by a number of workmen	 vide Central Provinces Transport Services vs Raghunath Gopal Patwardhan(1) and The Newspapers Ltd. vs The State Industrial Tribunal	 U.P. (2). (1) ; (2) ; 397 This view is based on a consideration of the general policy underlying the provisions of the Act. As is well known	 the Act has been passed for the investigation and settlement of industrial disputes	 and its material provisions have been enacted	 because it was thought expedient to make provision for such investigation and settlement of disputes	 keeping in mind the importance of the development of Trade Union Movement on proper lines in this country. Having regard to this broad policy underlying the Act	 this Court and indeed a majority of Industrial Tribunals are inclined to take the view that notwithstanding the width of the words used by the Act in defining an "industrial dispute"	 it would be expedient to require that a dispute raised by a dismissed employee cannot become an industrial dispute	 unless it is supported either by his Union or	 in the absence of a Union	 by a number of workmen. Unless such a limitation was introduced	 claims for reference may be made frivolously and unreasonably by dismissed employees	 and that would be undesirable. Besides	 in order to safeguard the interests of the working class in this country	 it was thought that the development of Trade Union movement on healthy Trade Union lines was essential and that requires that disputes between employers and employees should be settled on a collective basis. A complaint against a wrongful dismissal should	 therefore	 be the subject matter of reference	 provided the workmen acting collectively take up the case of the dismissed employee and contend that the dismissal is unjustified or wrongful. It is on these grounds that this Court has held that an individual dispute arising from an alleged wrongful dismissal of an employee can be validly referred under section 10 only if it is supported by the Union of the workmen to which the dismissed employee belongs or by a group of his co employees. There is no dispute that the Mercantile Employees ' Association has taken up the dispute on behalf of the 18 dismissed employees. In fact	 as we have already indicated	 the said Association took up this dispute before the Conciliation Officer and when the conciliation proceed ings failed	 it successfully moved the Delhi Administration to make a reference under section 10(1) of the Act. It was	 however	 urged before the Tribunal that besides the 18 dismissed employees	 no other employee of the respondent is a member of the said Association	 and so	 it was contended that the said Association was not authorised to raise the dispute	 and in the absence of proof of the fact that the dispute had been sponsored or espoused by the Union of the employees of the respondent	 the reference should be held to be invalid. This contention has been upheld by the Tribunal; and so	 the question which we have to decide is whether the Tribunal was right in holding that the Mercantile Employees ' Association had no authority to raise and support the present dispute. 398 In support of its conclusion	 the Tribunal has relied upon the decision of this Court in Bombay Union of Journalists and others vs The "Hindu"	 Bombay & Anr.(1). In that case	 the services of one Salivateeswaran	 who claimed that he was a full time employee of the "Hindu"	 a daily newspaper published in Madras	 were terminated and an industrial dispute was raised in respect of the said termination by the Bombay Union of Journalists. The contention raised by the employer was that the reference was invalid inasmuch as the dispute referred for adjudication was an individual dispute and not an industrial dispute. This contention was accepted by the Tribunal; and that brought the dispute before this Court. In dealing with the effect of the decision pronounced by this Court in that case and particularly of certain observations made in the course of the judgment	 it is necessary to bear in mind one finding of fact which had been recorded by the Tribunal and confirmed by this Court. It appears that in that case	 the appellants strongly relied upon a resolution passed on April 17	 1948	 by which it was alleged that the Bombay Union of Journalists had taken up the dispute of Salivateeswaran against the "Hindu" and had decided to demand reliefs for the "retrenched Journalist". Evidence was led to prove that such a resolution had been passed	 but that evidence was discarded both by the Tribunal and this Court	 and this Court definitely found that "the evidence tends to establish the plea raised by respondent No. 1 that the record of the alleged resolution was fabricated with a view to support the case of Salivateeswaran". In other words	 in point of fact	 there was no reliable evidence to show that the Bombay Union of Journalists had taken up the case of the retrenched employee Salivateeswaran. In view of this finding	 it follows that the 'observations made by this Court in regard to the requirements of a valid reference under section 10(1) of the Act are in the nature of orbiter observations. It does appear that in dealing with the point of law as to the requirements of a valid reference	 this Court 'observed that "the dispute	 in the present case	 being prima facie an individual dispute	 in order that it may become an industrial dispute	 it had to be established that it had been taken up by the Union of employees of the "Hindu"	 Bombay	 or by appreciable number of employees of the "Hindu"	 Bombay. Similarly	 it was also observed that the "principle that the persons who seek to support the cause of a workman must themselves be directly and substantially interested in the dispute	 applied to the case before the Court"; and so	 one of the tests which this Court applied was whether the persons who supported the cause	 were employees of the same employer; if they were not	 it was thought that they could not be regarded as interested in the dispute and as such	 their support may not (1) ; 399 convert an individual dispute into an industrial dispute. That is why the support lent to the cause of Salivateeswaran by the Bombay Union of Journalists was found to be insufficient to convert the cause into an industrial dispute. These observations	 no doubt	 prima facie lend support to the view which the Tribunal has accepted. It appears that the Bombay Union of Journalists had on its roll several working Journalists in other journals; but out of the three working journalists working with the "Hindu" at its Bombay office	 two had become the members of the Bombay Union of Journalists	 viz.	 Salivateeswaran and Venkateswaran. Tiwari	 the third working journalist working in the office of the "Hindu"	 Bombay	 had not become a member of the said Union. In the Office of the "Hindu"	 there were seven other workmen	 but they were working on the administrative side. In other words	 out of the ten employees in the office of the " Hindu"	 seven were on the administrative side	 and three on the journalism side; and out of these three	 two were members of the Union. It is in the light of these facts that this Court expressed the opinion that the Bombay Union of Journalists was not competent to raise the dispute	 and even if it had raised it	 the dispute could not have become an industrial dispute. In our opinion	 the observations on which the Tribunal has relied in support of its conclusion in the present case	 should not be read as laying down any hard and fast rule in the matter. Take	 for instance	 the case of an employer who employs 20 workmen	 and assume that these workmen have not formed any Union. If the employer illegally dismisses all the workmen employed by him	 it cannot be suggested that the dispute about the dismissal of these employees would not become an industrial dispute because there is no Union to support them and the dismissed employees themselves cannot convert their individual dispute into an industrial dispute. In the present case	 out of 45 employees 18 have been dismissed	 and there is no evidence to show that these employees have a Union of their own. In such a case	 it would be difficult to hold that though the number of employees dismissed is 18	 they cannot raise a dispute by themselves in a formal manner. Considerations which would be relevant in dealing with a dispute relating to an individual employee 's dismissal	 would not be material in dealing with a case where a large number of employees have been dismissed on the same day. It is not disputed that a union of workmen may validly raise a dispute as to dismissal even though it may be a union of the minority of the workmen employed in any establishment. The majority union	 of course	 can raise a dispute	 and if a reference is made under section 10(1) of the Act at its instance	 the reference	 is valid. Similarly	 if there is no union of workmen in any establishment	 a group of employees can raise the dispute and the dispute then becomes an industrial dispute	 though it may 400 relate to the dismissal of an individual employee. This position is not disputed. If that is so	 it is difficult	 we think	 to apply or extend the observations made in the case of the Bombay Union of Journalists(1) to the present case. In the present case	 we are dealing with a reference made by the Delhi Administration in relation to the appellants ' contention that the dismissal of 18 employees is invalid	 and not with a case of the dismissal of a single employee. Therefore	 we do not think that the Tribunal was right in relying upon the decision in the case of the Bombay Union of Journalists(1) in support of its conclusion that the present reference was invalid. It is well known that in dealing with industrial disputes	 industrial adjudication is generally reluctant to lay down any hard and fast rule or adopt any test of general or universal application. The approach of industrial adjudication in dealing with industrial disputes has necessarily to be pragmatic	 and the tests which it applies and the considerations on which it relies would vary from case to case and would not admit of any rigid or inflexible formula. There is no doubt that the limitations introduced by the decisions of this Court in interpreting the effect of the definition prescribed by section 2(k) of the Act were based 'on such pragmatic considerations. It may also be conceded that if the dismissal of an individual employee working in an establishment in Delhi is taken up by the union of workmen in a place away from Delhi	 that would clearly not make the dispute an industrial dispute. Section 36 of the Act which deals with the representation of parties	 incidently suggests that the union which can raise an individual dispute as to a dismissal validly	 should be a union of the same industry. Generally	 it is the union of workmen working in the same establishment which has passed the impugned order of dismissal. But in a given case	 it is conceivable that the workmen of an establishment have no union of their own	 and some 'or all of them join the union of another establishment belonging to the same industry. In such a case	 if the said union takes up the cause of the workmen working in an establishment which has no union of its own	 it would be unreasonable to hold that the dispute does not become an industrial dispute because the union which has sponsored it is not the union exclusively of the workmen working in the establishment concerned. In every case where industrial adjudication has to decide whether a reference in regard to the dismissal of an industrial employee is validly made or not	 it would always be necessary to enquire whether the union which has sponsored the case can fairly claim a representative character in such a way that its support to the cause would make the dispute an industrial dispute. "Industry" has been defined by section 2(j) of the Act and it seems to us that in some cases	 the union of workmen working in one industry may be competent to raise a dispute about the wrongful dismissal of an employee engaged in an establishment belonging to the same industry where workmen (1) ; 	 401 in such an establishment have no union of their own	 and an appreciable number of such workmen had joined such other union before their dismissal. In fact	 the object of trade union movement is to encourage the formation of larger and bigger unions on healthy and proper trade union lines	 and this object would be frustrated if industrial adjudication were to adopt the rigid rule that before any dispute about wrongful dismissal can be validly referred under section 10(1) of the Act	 it should receive the support of the union consisting exclusively of the workmen working in the estab lishment concerned. Besides	 there is another way in which this question can be considered. If 18 workmen are dismissed by an order passed on the same day	 it would be unreasonable to hold that they themselves do not form a group of workmen which would be justified in supporting the cause of one another. In dealing with this question	 we ought not to forget the basic theory on which limitation has been introduced by this Court on the denotation of the words "industrial dispute" as defined by section 2(k) of the Act. Therefore	 we are satisfied that the Tribunal was in error in rejecting the reference on the preliminary ground that the dispute referred to it was an individual dispute and not an industrial dispute within the meaning of section 2(k). The result is	 the appeal is allowed	 the finding of the Tribunal on the preliminary issue is reversed	 and the matter is sent back to the Tribunal for disposal in accordance with law. There would be no order as to costs. Appeal allowed.

Summary:
Out of 45 employees of the respondent	 18 had become members of a Trade Union. Later	 these 18 employees were dismissed by an order passed on the same day. The Union took up the cause and ultimately the dispute was referred to the Tribunal	 where the respondent raised the preliminary objection that the reference was invalid inasmuch is the dispute referred to the Tribunal was not an industrial dispute but was merely an individual dispute	 and besides these dismissed employees no other employees of the respon dent was a member of the Union	 and so the Union could not raise the dispute. This was upheld by the Tribunal. In appeal by special leave; HELD:The appeal must be allowed. The definition of "industrial dispute" in section 2(k) shows that before any dispute raised by any person can be said to be an industrial dispute	 it must be shown that it is connected with the employment or non employment of that person. This condition is satisfied in the present case. [396 D] Having regard to the broad policy underlying the Act	 this Court and indeed a majority of Industrial Tribunals are inclined to take the view that notwithstanding the width of the words used by the Act in defining an "industrial dispute" it would be expedient to require that a dispute raised by a dismissed employee cannot become an industrial dispute	 unless it is supported either by his Union or	 in the absence of a Union by a number of workmen. [397 B C] Considerations which would be relevant in dealing with a dispute relating to an individual employee 's dismissal	 would not be Material in dealing with a case where a large number of employees have been dismissed on the same day. [399 G H] A Union of workmen may validly raise a dispute as to dismissal even though it may be a union of minority of the workmen employed in any establishment. Similarly if there is no union of workmen in any establishment	 a group of employees can raise the dispute and the dispute then becomes an industrial dispute	 though it may relate to the dismissal of an individual employee. [399 H] In a given case it is conceivable that the workmen of an establishment have no union of their own and some or all of them join the union of another establishment belonging to the same industry. In such a case if the said union take up the cause of the workmen working in an establishment which has no union of its own	 it would be unreasonable to hold that the dispute does not become an industrial dispute because the Union which has sponsored it is not the union exclusively of the workmen working in the establishment concerned. In every case where industrial adjudication has to decide 395 whether a reference in regard to the dismissal of an industrial employee is validly made or not it would be necessary to inquire whether the Union which has sponsored the case can fairly claim a representative character	 in such a way that its support to the case would make the dispute an industrial dispute. [400 F H] Besides	 18 workmen	 dismissed by an order passed on the same day	 themselves form a group of workmen which would be justified in supporting the cause of one another. [401 C] Central Provinces Transport Service vs Raghunath Gopal Patwardhan	 ; and The Newspapers Ltd. vs The State Industrial Tribunal	 U.P.	 ; 	 relied on. Bombay Union of Journalists vs The Hindu	 Bombay	 	 explained and distinguished.