IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.8.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN Writ Appeals No.1518 of 1999 and 2066 of 2003 and C.M.P.No.13602 of 1999 W.A.No.1518 of 1999: 1. R.Bharathidasan 2. S.Narasimhan 3. J.Manoharan 4. K.Kumar 5. S.Madhivanan 6. T.Subramani 7. V.Divijeyendran 8. M.Govindan 9. O.Krishnamurthy 10.M.Radhakrishnan 11.K.Jeganathan 12.G.Krishnan ... Appellants Vs. 1.The Presiding Officer, Industrial Tribunal, Chennai. 2.M.R.F.Limited Arakonam-Thiruthani Road, Itchiuputhur, Arakonam Taluk. 3.M.R.F.Workers Union, represented by its Secretary, Itchiputhur Village & Post, Arakkonam Taluk, North Arcot District. ... Respondents W.A.No.2066 of 2003: MRF Limited, Arakonam-Thiruthani Road, Ichiputtur, Arakonam Taluk ... Appellants Vs. 1.The Presiding Officer, Industrial Tribunal, Madras. 2. K.Nagaian 3. D.Krishnamoorthy 4. R.Bharathidasan 5. T.Subramani 6. Mondi Govindudu 7. S.Narasimhan 8. K.Jaganathan 9. V.Divijendiran 10.K.Kumar 11.M.RAdhakrishnan 12.J.Manoharan 13.S.Mathivanan 14.G.Krishnan ... Respondents * * * Writ Appeals preferred under clause 15 of the Letters Patent. W.A.No.1518 of 1999 has been preferred as against the order passed by a learned single Judge of this Court dated 3.6.1999 made in W.P.No.975 of 1997. W.A.No.2066 of 2003 has been preferred as against the order passed by a learned single Judge of this Court dated 27.7.1999 made in W.P.No.19367 of 1996. * * * For appellants in W.A.No.1518/1999 & : Mr.V.Prakash, Sr.Counsel for R2 to R4 in for Mr.P.Chandrasekaran W.A.No.2066/2003 For R.2 in WA.No.1518/1999 &: Mr.Sanjay Mohan, Sr.Counsel for appellant in for M/s.Ramasubramanian WA.No.2066/2003 : Associates * * * COMMON JUDGMENT ELIPE DHARMA RAO, J.
The short question that is required to be answered by us in both these matters is ‘whether the workmen could independently challenge the lockout orders passed against them by the Management, when the Union, representing the majority of the workmen, which has raised the dispute before the Labour Court, has decided to withdraw the dispute, in view of the subsequent developments between the Union and the Management?’
2. The short facts, necessary for the disposal of these cases are that the M.R.F. Workers Union, the third respondent in W.A.No.1518 of 1999 has raised an Industrial Dispute pertaining to the individual lockout of 71 workmen under Section 2(k) of the Industrial Disputes Act before the Joint Commissioner of Labour and since the same has ended in failure and on receipt of the failure report, the Government has referred the dispute in G.O.Ms.No.77, dated 25.1.1994 and the said dispute was numbered as I.D.No.11 of 1994 on the file of the Industrial Tribunal, Chennai. During the pendency of this dispute, it seems, 58 workers and the Management entered into a settlement under Section 18(1) of the Industrial Disputes Act. The remaining 13 workmen concerned in the dispute, without changing the cause title of the reference, filed a claim statement signed by them before the Tribunal and the learned counsel who represent the Union continued to represent the 13 workmen also and filed the claim statement. In these circumstances, the above said Union, through its Secretary Mr.Vijayan, has filed Memo.No.4744 of 1995, dated 22.12.1995 to withdraw the I.D.No.11 of 1994 and filed another Memo.No.109 of 1996, stating that they have revoked the vakalat given to their advocates on record and engaged other Advocates. The 13 workmen took strong objection to these two memos., by filing an objection stating that the lockout imposed upon these 13 persons is yet to be resolved and that the Union cannot withdraw the dispute. It has also been stated that Mr.Vijayan, who filed the memos., as the Secretary of the Union, is not competent to withdraw the dispute and he should act as per the decision of the Central Body/Executive Committee of the Union and he cannot unilaterally take any decision. And that there is no meeting of the Executive Committee of the Union or the General Body of workmen resolving to withdraw the dispute as not pressed.
3. Taking up both the memos. together, the Tribunal has allowed the Memo. filed for withdrawal of the vakalat given to the earlier Advocates and dismissed the memo. filed for withdrawal of the dispute. In this course, the Tribunal has held that though it is a dispute under Section 2(k) of the Industrial Dispute raised by the Union, if the individual workers are affected, they can proceed with the adjudication and that though 58 workers have entered into settlements with the Management during the pendency of the dispute, such settlements entered into between the individual workers and the Management will not bind the other workers like the 13 workmen and therefore, the Tribunal can adjudicate the dispute further and find out the truth and reach a finality.
4. Aggrieved by the said decision of the Tribunal in refusing permission to withdraw the dispute, the M.R.F.Workers Union has filed W.P.No.975 of 1997 and the Management has filed W.P.No.19367 of 1996. Though both the writ petitions were filed against one and the same order passed by the Tribunal, they were taken up separately on different dates by two learned Judges of this Court. In W.P.No.975 of 1997 filed by the Union, a learned single Judge of this Court has held that when once the Union, which has raised the dispute, is willing to withdraw the same, the only course open for the Tribunal is to close the dispute as withdrawn, since the individual workmen do not come into the picture in a collective dispute and that the rejection to withdraw the dispute would affect industrial peace and tranquility. On such grounds, the learned single Judge has allowed the said Writ Petition No.975 of 1997 filed by the Union, by his order dated 3.6.1999. Following this order passed in W.P.No.975 of 1997, dated 3.6.1999, another learned single Judge of this Court, by the order dated 27.7.1999, has dismissed the writ petition No.19367 of 1996 filed by the Management as infructuous, since the very same order under challenge has already been quashed in W.P.No.975 of 1997.
5. Aggrieved against the order passed by the learned single Judge in W.P.No.975 of 1997, dated 3.6.1999, the individual workers, numbering 12 have come forward to prefer W.A.No.1518 of 1999 and the Management, aggrieved against the order dated 27.7.1999 passed in W.P.No.19367 of 1996, has come forward to prefer W.A.No.2066 of 2003.
6. Before proceeding to discuss the above mentioned legal question, it must be mentioned that out of the 13 workers, who have filed objection before the Tribunal and are the respondents 3 to 15 before the learned single Judge in W.P.No.975 of 1997, only 12 workers have come before this Court in W.A.No.1518 of 1999 and on a comparison of the array of parties, we are able to see that one K.Nagaiah, who is the fourth respondent in W.P.No.975 of 1997, has not joined the appellants in W.A.No.1518 of 1999 to challenge the order of the learned single Judge.
7. In CENTRAL PROVINCES TRANSPORT SERVICE LTD. vs. RAGHUNATH GOPAL [AIR 1957 SC 104], it has been held by the Honourable Supreme Court that ‘the preponderance of judicial opinion was clearly in favour of the view that a dispute between an employer and a single employee cannot per se be an industrial dispute but it may become one if it is taken up by an Union or a number of workmen.’ It has also been held as follows:
“Notwithstanding that the language of Sec.2(k) is wide enough to cover disputes between an employer and a single employee, the scheme of the Industrial Disputes Act does appear to contemplate that the machinery provided therein should be set in motion to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of adjudication under the Act, when the same had not been taken up by the Union or a number of workmen.”
8. In RAM PRASAD VISHWAKARMA vs. CHAIRMAN, INDUSTRIAL TRIBUNAL, PATNA AND OTHERS [AIR 1961 SC 857], a Three Judge Bench of the Honourable Apex Court, referring to the above judgment in Raghunath Gopal’s case, has held that
“7. This view which has been re-affirmed by the Court in several later decisions recognises the great importance in modern industrial life of collective bargaining between the workman and the employers. It is well known how before the days of collective bargaining labour was at a great disadvantage in obtaining reasonable terms for contracts of service from his employer. As trade unions developed in the country and collective bargaining became the rule the employers found it necessary and convenient to deal with the representatives of workmen, instead of individual workmen, not only for the making or modification of contracts but in the matter of taking disciplinary action against one or more workmen and as regards all other disputes.
8. The necessary corollary to this is that the individual workman is at no stage a party to the industrial dispute independently of the Union. The Union or those workmen who have by their sponsoring turned the individual dispute into an industrial dispute, can therefore, claim to have a say in the conduct of the proceedings before the Tribunal.
9. It is not unreasonable to think that Sec.36 of the Industrial Disputes Act recognises this position, by providing that the workman who is a party to a dispute shall be entitled to be represented by an officer of a registered trade union of which he is a member. While it will be unwise and indeed impossible to try to lay down a general rule in the matter, the ordinary rule should in our opinion be that such representation by an officer of the trade union should continue throughout the proceedings in the absence of exceptional circumstances which may justify the Tribunal to permit other representation of the workman concerned….”
9. In MANAGER, HOTEL IMPERIAL, NEW DELHI vs. CHIEF COMMISSIONER [AIR 1959 SC 1214], the Honourable Apex Court has held that ‘to an industrial dispute a single workman or some workmen or the workmen as a body may be parties. Relying on this judgment of the Honourable Apex Court, a Division Bench of the Orissa High Court in THE MANAGEMENT OF MESSRS. GAMMON (INDIA) LTD. vs. STATE OF ORISSA AND OTHERS [1974-II- LLJ, internal page No.34, has held that ‘a reference under the Act would be maintainable if it is described as a dispute between the management on the one side and its workmen on the other. For convenience of procedure such a notice,fixation of date of hearing, etc. The body of workmen is usually represented through a union.’
10. In HERBERTSONS LTD. vs. THE WORKMEN OF HERBERTSONS LTD. AND OTHERS [AIR 1977 SC 322], the Honourable Apex Court has held as follows:
“When a recognised Union negotiates with an employer the workers as individuals do not come into the picture. It is not necessary that each individual worker should know the implications of the settlement since a recognised union, which is expected to protect the legitimate interests of labour, enters into a settlement in the best interests of labour. This would be the normal rule. There may be exceptional cases where there may be allegations of mala fides, fraud or even corruption or other inducements. But, in the absence of such allegations a settlement in the course of collective bargaining is entitled to due weight and consideration.” (emphasis supplied)
11. In K.C.P. LTD. vs. PRESIDING OFFICER AND OTHERS [VOL.89 FJR 632], a Three Judge Bench of the Honourable Apex Court has held that
“the dispute having been raised by the workers’ union on behalf of all the 29 workmen, and it was an industrial dispute as defined in section 2(k) and not one under Section 2-A, and the 12 workmen were at the relevant time members of the union and continued to be members thereof, it was that union which was in charge of the proceedings and could represent all the 29 dismissed workmen. When the union, having considered the pros and cons of the situation, entered into the settlement on behalf of all the workmen, it was binding on all the 29 dismissed workmen, unless the settlement was found to be ex facie unjust and unfair; and the 12 workmen, who could be said to be parties to the settlement through their representative union, could not go behind the settlement. The Labour Court had to pass an award in terms of the settlement by treating it to be binding on the 12 workmen also.” (emphasis supplied)
12. No doubt, the dispute in the case on hand was raised under Section 2(k) of the I.D. Act by the Union as a collective dispute and it is not a dispute under Section 2-A of the I.D.Act raised by the individual workmen. On a thorough analysis of the above judgments of the upper forums of law, we could see that there is no complete bar on an individual workman to pursue the dispute, if the settlement arrived at by the Union is tainted with malafide, fraud or corruption and the individual workmen could very well fight for their cause.
13. In the case on hand, the strong case of the workmen is that as against the illegalities being committed by the Management, they have organised themselves under the CITU Union, which has irked the Management, resulting in issuing charge-sheets on false allegations, wage-cut, suspension, increment cut, transfer from one department to another and in August 1991, workmen numbering 70 were placed under suspension and there were series of agitations conducted by the workmen against the victimisation and talks were held before the Superintendent of Police Mr.Sawani and a compromise was reached between the Superintendent of Police and the management agreed to withdraw the suspension against all the above 70 workmen. It has also been contended on behalf of the workmen that the Management went against their commitment and in the case of apprentices and probationers, they were terminated from service under the guise of efflux of time as provided in the order of appointment and by adopting an improper method, all the probationers and apprentices, numbering about 100, were terminated between August, 1991 and October, 1992 and the office bearers and the activists were dismissed by the management on false charges and thus the intention of the management was to strangulate and wipe out the CITU and to force the workmen to accept the puppet Union, namely the MRF Cycle tyre union, sponsored by the management.
14. From the materials placed on record, we are also able to see that since the individual workmen were also approaching the counsel on record for the Union before the Tribunal, the Union, has filed a memo. to change their counsel. Though a client is at his will and wish to change the counsel, from the attitude of the Union, we are able to see that only to prevent the workmen from approaching the advocates of the Union for any of their grievances, the Union, appears to be a puppet of the Management, has taken this decision of changing the counsel themselves.
15. On an analysis of the entire facts and circumstances of the case, we are able to see that the earlier attempt of the workers to organise themselves with the CITU, has caused eye-sore to the Management, leading to initiation of various disciplinary proceedings and ultimately the individual lock-out orders and the present MRF Workers Union was created by the Management, as a puppet Union and that by using all forces on all fours, the Management was able to achieve, through the puppet Union, to bow down certain employees to accept the settlements prepared in a cyclostyled manner by the Management and since the rest of the individual workers have not agreed for such illegal threats imposed on them by the Union and the Management, the Union, in a cunning manner, by playing fraud has come forward with the plea to withdraw the dispute itself and since their individual right of personal lock out has to be adjudicated and decided by the Tribunal, the Tribunal has rightly dismissed the illegal and immoral prayer of the Union.
16. Since from the above referred judgments, it is clear that fraud vitiates everything and there is no complete bar on the individual workmen, whose rights are at stake, to continue the dispute before the Tribunal, we have no hesitation to hold that in such circumstances of fraud played by the Union, the individual workers can very well come into picture to save their rights and to fight for the same, and can very well proceed with the dispute, originally raised by the Union. The legal question involved in the above matters is answered, thus, in favour of the workmen, confirming the view taken by the Tribunal and setting aside the contra observations made by the learned single Judge in W.P.No.975 of 1996.
17. However, now from the materials placed on record by the Management, it is seen that out of even these 12 workers, the Management has dismissed six workmen – appellants 4,5 7 and 10 to 12 in W.A.No.1518 of 1999 viz. K.Kumar, S.Madhivanan, V.Divijeyendran, M.Radhakrishnan, K.Jeganathan and G.Krishnan – for certain alleged misconducts after holding domestic enquiry and the Management has also filed Approval Petitions under Section 33(2)(b) of the I.D. Act before the Industrial Tribunal, Chennai. During the pendency of the above Approval Petitions, the Management has also filed Interlocutory Applications to let in fresh evidence by the Management in the unlikely event of the Industrial Tribunal vitiating the fairness enquiry and since the Tribunal has dismissed the said petitions, the Management has filed Writ Petitions and they are pending.
18. It is also seen from the counter of the Management that the remaining six appellants refused to give undertakings till 6.12.1996 (i.e. even after 4 = years) and consequently, the Management has terminated the services of these six appellants also for an alleged ‘reasonable cause’ and against this order of termination, the remaining six appellants i.e. appellants 1 to 3, 6, 8 and 9 viz. R.Bharathidasan, S.Narasimhan, J.Manoharan, T.Subramani, M.Govindan and O.Krishnamurthy have filed complaints before the Tribunal under Section 33-A of the I.D.Act. During the pendency of trial, out of these six complainants also, D.Krishnamoorty and R.Bharathidasan (appellants 1 and 9) have settled their issue of non-employment by way of Section 18(1) settlements and Awards were passed as these complainants have withdrawn the complaints and the remaining complainants have contested the matter and after an elaborate trial, the Tribunal dismissed the complaints by the Award dated 15.4.2004, as against which they have filed W.P.No.1655 of 2007 before this Court and the same is pending. It has also been submitted by the Management that since W.P.No.975 of 1996 was allowed by the learned single Judge, permitting the Union to withdraw the dispute, the Tribunal has passed an award dismissing I.D.No.11 of 1994 on 28.7.1999 and therefore, as on date, I.D.No.11 of 1994 is not pending and hence the question of continuing I.D.No.11 of 1994 by the remaining workmen does not arise. On such facts, the Management would pray to dismiss these writ appeals. As has already been clarified supra, one Nagaiah has not joined the appellants in W.A.No.1518 of 1999, but however, the Management in their counter affidavit has also mentioned his name as if he is also contesting the appeal.
19. Since I.D.No.11 of 1994 has already been dismissed by the Tribunal on 28.7.1999, after the judgment of the learned single Judge in W.P.No.975 of 1996, nothing remains to be adjudicated in I.D.No.11 of 1994, as of now. Even though at the time of admission of W.A.No.1518 of 1999, an order of stay was passed on 18.8.1999, since the same came to be passed only after the dismissal of I.D.No.11 of 1994 on 28.7.1999, the said stay order has no help to the case of the individual workmen. Therefore, since the main case in I.D.No.11 of 1994 itself has been dismissed by the Tribunal, virtually, both these writ appeals became infructuous. However, it is made clear that the individual workmen can very well work out their legal remedies available to them, if they are so advised, since even a new cause of action has arisen for them.
With the above observations, both these writ appeals are disposed of. No costs. Consequently, C.M.P.No.13602 of 1999 is closed.
Rao
To
The Presiding Officer,
Industrial Tribunal,
Chennai