Associated Cement Companies, … vs Central Government Industrial … on 7 January, 1959

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71
Patna High Court
Associated Cement Companies, … vs Central Government Industrial … on 7 January, 1959
Equivalent citations: (1959) IILLJ 639 Pat
Author: K Singh
Bench: Ramaswami, K Singh


JUDGMENT

Kamhaiya Singh, J.

1. This is a writ petition under Articles 226 and 227 of the Constitution of India and concerns the validity of the order dated 7 July 1958, of the Central Government Industrial Tribunal, Dhanbad (hereinafter referred to as the tribunal). The Associated Cement Companies, Ltd., Kotma Colliery, Kotma, are the petitioners. The chairman of the tribunal is opposite party 1. R.W. Nair and M.K. Mhaskar are respectively opposite parties 2 and 3. The Union of India is opposite party 4. Nair and Mhaskar were the employees of the petitioners, being employed as accounts clerks at Kotma Colliery in the State of Vindhya Pradesh, now forming part of the State of Madhya Pradesh. There were certain allegations of misconduct against them. The petitioners accordingly drew up proceedings against them, and charges were framed. They were given full and ample opportunity to make their respective defences. The investigation of the cases against them was entrusted to Sri Rajagopalaswami. He held enquiries in accordance with the certified standing orders of the companies-petitioners. After full investigation, he found the defences to be untrue. He held that they were guilty of certain misconduct and recommended their dismissal. As, however, an adjudication, to which the petitioners were parties, was pending before the All-India Industrial Tribunal (Colliery Disputes), Calcutta, instead of dismissing them forthwith; the petitioners suspended them from service and at the same time made applications to the tribunal under Section 33 of the Industrial Disputes Act, 1947, for permission to dismiss them. The said employees also moved the tribunal under Section 33A of the said Act praying for vacating the order of suspension passed against them on the ground that it was ultra vires and illegal. Meanwhile, Dr. Batheja, one of the members of the tribunal, resigned, and, in consequence, the tribunal was reconstituted by S.R.O. No. 472 dated 25 February 1955. The result was that the applications of the petitioners under Section 33 and the complaints of Nair and Mhaskar under Section 33A lapsed. Thereafter, it appears that their case was taken up with the Government of India by Sri R.L. Malviya, organizing secretary, Indian National Trade Union Congress, Vindhya Pradesh Branch, and vice-president of the Indian National Mine Workers’ Federation, Dhanbad, and conciliation proceedings were held by Sri P.S. Dhamne, conciliation officer, Jabalpur, on 9 December 1955, but the petitioners were not prepared to take part in the conciliation proceedings to reconsider their decision to dismiss these two workmen. Sri Malviya had further communications with the Government of India in his capacity as vice-president of the Indian National Mine Workers’ Federation and organizing secretary of the Indian National Trade Union Congress, Vindnya Pradesh Branch, and ultimately in exercise of the powers conferred upon them under Section 10 of the Industrial Disputes Act, 1947, the Government of India by notification No, S.R.O. 34, dated 31 December 1955, referred the dispute to the arbitration of Sri P.S. Bindra, Central Government Industrial Tribunal, Dhanbad. The subject-matter of the dispute, as stated in the schedule to the said order, was as follows:

Alleged wrongful termination of the services of the following workmen and the relief, if any, to which they are entitled:

(i) Sri M.K. Mhaskar, ex-accounts clerk, Kotma Colliery.

(ii) Sri R.N. Nair, ex-accounts clerk, Kotma Colliery.

Later, upon the services of Sri P.S. Bindra ceasing to be available, the Government, by S.R.O. No. 1504 dated 22 June 1956, referred the dispute to Sri Matin Ahmed who constituted an industrial tribunal with headquarters at Lucknow. Thereafter, by another notification No. S.R.O. 3507, dated 5 November 1956, the Government further amended the order of reference dated 22 June 1956 by changing the headquarters of Sri Matin Ahmad from Lucknow to Dhanbad. Before this tribunal both parties filed their written statements. The petitioners by their written statement dated 18 September 1956 raised several preliminary objections to the validity of the order of reference and prayed to the tribunal to hear and determine those objections before proceeding to hear the reference on its merits. The main objections urged by the petitioners were:

(1) that there had not been at all material times any industrial dispute between the companies and their workmen,

(2) that the dispute mentioned in the order of reference was an individual dispute and not an industrial dispute within the meaning of the Industrial Disputes Act. 1947, and

(3) the Mhaskar and Nair were not workmen as defined in the said Act.

The tribunal, however, refused to decide the preliminary objections raised by the petitioners and fixed a date for the disposal of the reference on merits. Thereupon, the petitioners filed writ petitions before this Court and prayed for an appropriate writ under Article 226 of the Constitution for calling up and quashing the order of reference and also for a writ prohibiting the Central Government Industrial Tribunal from adjudicating the disputes mentioned in the order of reference. This application was numbered as Miscellaneous Judicial Case No. 936 of 1956. This Court by its order dated 6 September 1957 allowed the application and gave the following directions:

For these reasons we think that we should give a direction requiring the Central Government Industrial Tribunal at Dhanbad to hear and determine the preliminary objections raised by the petitioner in their written statement dated 18 September 1956, and after determining these preliminary objections, the tribunal will proceed to hear the reference on its merits and dispose it of in accordance with law. We should add that the Central Government Industrial Tribunal should hear the preliminary objections after giving reasonable notice to the parties.

Thereafter, preliminary objections were heard by Sri Salim M. Merchant, Chairman, Central Government Industrial Tribunal, Dhanbad, who, by his order dated 7 July 1958, overruled the preliminary objections of the petitioners and held that the reference was valid and the tribunal had jurisdiction to entertain the same. He fixed 4 August 1958 for the hearing of the reference on merits.

2. Now, the Associated Cement Companies, Ltd., have come up again to this Court for a prerogative writ and have obtained a rule calling upon the opposite party to show cause why the order of the tribunal dated 7 July 1958 shall not be called up and quashed by a writ in the nature of a writ of certiorari and further why a writ of prohibition shall not issue prohibiting the tribunal from proceeding with the hearing of the reference on its merits.

3. No cause has been shown on behalf of the opposite party. Nair and Mhaskar, opposite parties 2 and 3, did not even appear before this Court, nor was there any appearance on behalf of the tribunal (opposite party 1). Opposite party 4, the Union of India, is however, represented by the Government Advocate but no counter-affidavit had been filed on its behalf. It appears that Nair and Mhaskar have no longer any interest in this matter.

4. The grounds on which the petitioners impugned the validity of the order of reference and challenged the jurisdiction of the tribunal to entertain and dispose of the same may be summarized as follows :-

(a) Except for the petitioners’ applications and the workmen’s complaints, there was no correspondence on the matter between the workmen or any union and the petitioners. In particular, no request or demand was made by the workers themselves or any union or any federation that the suspension orders should be cancelled.

(b) On 25 November 1955, Sri R.L. Malviya addressed a letter to the Secretary, Ministry of Labour, New Delhi, in which he referred to his constant efforts regarding the applications before the Collieries Tribunal, and requesting the Government to order conciliation proceedings or reference to the tribunal early. Presumably, in response to this, Sri P.S. Dhamne, Conciliation Officer (Central), Jabalpur, held conciliation proceedings at Kotma on 9 December 1955. Neither of the said two clerks appeared, nor any other workmen nor any representative of the federation of unions appeared on their behalf. On the contrary, at these proceedings, the Kotma Colliery Labour Union existing in the colliery did not want to represent the said employees as expressly recorded by the conciliation officer.

(c) In law there can be no reference to adjudication of an issue which was the subject-matter of an application under Section 33 of the Industrial Disputes Act and of complaints under Section 33A before the All India Industrial Tribunal (Collieries Disputes). Complaints under Section 33 A have to be disposed of by the tribunal as if they were disputes referred to it, as expressly laid down in Section 33A of the Act. In law there can be no lapsing of a complaint under Section 33A, at any rate on reconstitution of a tribunal.

(d) The amendment of the order of reference was bad as Government had no power so to amend an order of reference as to nullify its effect and otherwise also, the reference as amended was bad.

(e) There is not and has not been, at all material times, particularly on or about 31 December 1955 (the date of reference of the dispute), in fact, any dispute between the petitioners and their workers at any time, on this matter. At no time, at or since the order of suspension was passed against Nair and Mhaskar did any union or any body of the workers at Kotma Colliery or otherwise take up or Interest themselves in their cases. No demand or representation was made either by the union or general body of workers at Kotma or elsewhere.

(f) In any event, no demand or representation in regard to the suspension of these persons had been made to the petitioners either by the Kotma Colliery Labour Union or the Kotma Colliery Kamdar Samity or any general body of workers at Kotma Colliery or elsewhere. No such demand had been made or representation received and no such demand had been refused and as such, in the absence of a demand and its refusal, there cannot in law be an industrial dispute in that behalf.

(g) At beat, this can only be an individual dispute and not an industrial dispute. So far as the petitioners were aware, the workers at Kotma Colliery were not interested in the dispute and had not taken it up. Neither the workers at Kotma Colliery nor the unions operating there at the time-Kotma Colliery Labour Union and the Kotma Colliery Kamdar Samity- had passed any resolution of their general body or of their executive committee In the matter. Neither had they in any other way indicated that they had taken up or adopted the dispute. No demand even in regard to the suspension was made on the petitioners.

(h) So far as the Indian National Mine Workers’ Federation is concerned, there is no evidence whatever that the federation had taken up or authorized Sri Malviya to take up the said matter with the petitioners or anybody else. Mr. Malviya personally in any capacity had no authority and was not interested to take up the matter.

(i) The dispute was not an Industrial dispute as the ex-employees were not workmen within the meaning of the words “industrial dispute” and “workmen” . under the Industrial Disputes Act. The ex-employees had not been dismissed (on the footing that they had bean dismissed and not merely suspended) in connexion with or as a result of any antecedent pending dispute. The dispute before the All India Industrial Tribunal (Collieries Disputes) related to collective terras and conditions, such as, wages, dearness allowances, etc., while these two ex-employees were suspended pending receipt of permission for their own individual respective specified acts of misconduct.

5. These facts establish inter alia that the dispute in the present case concerns only the rights of these two workmen (opposite parties 2 and 3), and their cases were not sponsored by the trade union of which they were members, nor was there any concerted demand by the employees on their behalf. In fact, this was the main ground which was stressed before us by Mr. B.J. Koleh. In absence of any counter-affidavit, these facts have to be accepted as correct. In fact, the learned Government Advocate did not challenge their correctness. His main objection, however, was that when the chairman of the industrial tribunal had decided to hear the reference on merits, this Court should not by a prerogative writ interfere with his decision. I do not agree with his contention. The prerequisite of the jurisdiction is the existence of industrial dispute within the meaning of the Industrial Disputes Act, 1947. If there was no industrial dispute as contemplated by that Act, the Government of India has no jurisdiction to make any reference and a fortiori the tribunal did not derive any jurisdiction to entertain and dispose of the reference. In Clerks of Calcutta Tramways v. Calcutta Tramways Company, Ltd. 1956-II L.L.J. 450, their lordships of the Supreme Court have observed as follows :-

It is now well settled that generally the necessary pre-requisites for this Court’s interference to set right decisions arrived at by tribunals whose conclusions of fact are final can be classified under the following categories, namely:

(i) where the tribunal acts in excess of the jurisdiction conferred upon it under the statute or regulation creating it or where it ostensibly fails to exercise a patent jurisdiction;

(ii) where there is an apparent error on the face of the decision; and

(iii) where the tribunal has erroneously applied well-accepted principles of jurisprudence; it is only when error of this nature exists, that interference is called for.

Therefore, in this case we have to decide whether the tribunal had acted in exercise of its jurisdiction conferred upon it under the statute, and in order to determine this question we cannot ignore the facts established by evidence, or not denied by the parties. These are facts not concerning the merits of the case, but touching the jurisdiction of the Court. In other words, they are jurisdictional facts which have to be considered in order to judge the validity of the reference or the jurisdiction of tribunal to hear and determine the reference.

6. The main question, therefore, that falls for determination is whether there was an industrial dispute, as defined by Section 2(k) of the Industrial Disputes Act (Act 14 of 1947). There was no doubt a dispute between these two workmen and the petitioners, and the real question is as to whether such a dispute can be termed as industrial dispute within the meaning of the Industrial Disputes Act. It is now well settled that a dispute between an employer and individual employees cannot per se be an industrial dispute. It is only an individual dispute not within the purview of the Industrial Disputes Act. The dispute to be an industrial dispute should be of such a nature as is not confined to one or two Individuals, but their cases are taken up by the trade union of which they are members or there is a concerted demand by the employees on their behalf. It is equally well settled that a dispute between an employer and a single employee also may develop into an industrial dispute, if it Is taken up by the union or a number of workmen. In D.N. Banerjee v. P.R. Mukherjee 1953-I L.L.J. 195 their lordships of the Supreme Court have observed as follows :-

The words ‘industrial dispute’ convey the meaning to the ordinary mind that the dispute must be such as would affect large groups of workmen and employers ranged on opposite sides on some general questions on which each group is bound together by a community of interest, such as, wagas, bonus, allowances, pensions, provident fund, number of working hours per week, holidays and so on. Even with reference to a business that is carried on, we would hardly think of saying that there is an industrial dispute where the employee is dismissed by his employer and the dismissal is questioned as wrongful.

But at the same time, having regard to the modern conditions of society where capital and labour have organized themselves into groups for the purpose of fighting their disputes and settling them on the basis of the theory that in union la strength, and collective bargaining has come to stay, a single employee’s case might develop into an industrial dispute, when as often happens, it is taken up by the trade union of which he is a member, and there is a concerted demand by the employees for redress.

Such trouble may arise in a single establishment or a factory. It may well arise also in such a manner as to cover the industry as a whole in a case where the grievance, if any, passes from the region of individual complaint into a general complaint on behalf of all the workers in the industry. Such widespread extension of labour unrest la not a rare phenomenon bat is of frequent occurrence. In such a case, even an industrial dispute in a particular business becomes a large-scale industrial dispute, which the Government cannot afford to ignore as a minor trouble to be settled between the particular employer and workman.

7. In Central Provinces Transport Services, Ltd. v. Raghunath Gopal Patwardhan 1957-I L.L.J. 27 while expressing their concurrence with the view that the scheme of the Industrial Disputes Act contemplates 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 an adjudication under the Act, when the same had not been taken up by the union or number of workmen, their lordships of the Supreme Court refrained from expressing final opinion on the question whether a dispute simpliciter between an employer and a workman would be an Industrial dispute within Section 2(k) of the Industrial Disputes Act. The earlier decision of the Supreme Court in the case of D.N. Banerjee 1953-I L.L.J. 195 was, however, not referred to and considered in that case. These decisions as well as other decisions have been recently reviewed by a Division Bench of the Assam High Court in Management of Mohan Rice Mill v. Hasarika 1969-I L.L.J. 565 and their lordships of the Assam High Court have clearly laid down that individual dispute between employer and employees does not come within the purview of the Industrial Disputes Act. They have further laid down that a dispute to constitute industrial dispute must be a dispute taken up by the trade union of which the affected employees are members or that there is a concerted demand by the employees on their behalf. They have further laid down that under Section 10 of the Industrial Disputes Act, Government can only make a reference if in its opinion any industrial dispute exists or is apprehended. What is an industrial dispute is an objective fact and Government cannot turn a dispute which is not an industrial dispute into an industrial dispute by merely making an order of reference. Nor does the tribunal derive jurisdiction merely by the fact that there is a reference.

8. Keeping those principles in view what we have to investigate in this case is whether the cases of Mhaskar and Nair have been taken up by the union to which they belonged or have been sponsored by the workers of the Kotma Colliery. Now, as will appear from the above, their cases were never taken up by anyone or the workers of the industry where they were employed. On the contrary, before the conciliation officer, Jabalpur, the Kotma Colliery Labour Union did not want to represent them. There is no evidence at all to show that any of the workers at Kotma Colliery or any union operating in that colliery took up their cases, raised a dispute, made a demand, passed any resolution or addressed any letter to the Government. It is true that Sri R.L. Malviya had addressed a letter to the Government and it was at his initiative that the Government referred the dispute to the adjudication of the tribunal. Sri Malviya is the organizing secretary, Indian National Trade Union Congress, Vindhya Pradesh Branch, and vice-president, of the Indian National Mine Workers Federation, Dhanbad. But this fact is not sufficient to show that either the Indian National Trade Union Congress or the Indian National Mine Workers’ Federation authorized Sri Malviya to sponsor their cause. In fact, no attempt has been made to show what his locus standi was vis-a-vis the workmen or any union at Kotma Colliery. There is no evidence to prove that any union or workmen at Kotma had authorized him to take up this matter. This I have said on the assumption that the trade union at Kotma was affiliated to the Indian National Trade Union Congress or the Indian National Mine Workers’ Federation. But on the record there is no such evidence, and it is not established that any trade union at Kotma was affiliated either to the said congress or to the said federation. There is total absence of evidence to show whether any workmen of the Kotma Colliery were members of the Indian National Mine Workers’ Federation or that any union or workmen at Kotma Colliery had authorized the said federation to take up the matter or the said federation had authorized Sri Malviya to write to the Government. It was necessary for the opposite party to establish his authority to espouse their cause. There is nothing to show that the Kotma Colliery Union as such had authorized the Indian National Trade Union Congress to take up the cause of these two workmen either with the employer or with the authorities concerned or that the Indian National Trade Union Congress or the Indian National Mine Workers’ Federation as such authorized Sri Malviya to do the same. It seems that in the present case the dispute is confined only to two individuals, and Sri Malviya appears to have taken up the matter with the authorities at his own Initiative, without being duly authorized by the said congress or federation for that purpose. It will be observed that in the case of Management of Motion Rice Mill 1959-I L.L.J. 565 the matter was referred to arbitration on the basis of a report made by the secretary, Indian National Trade Union Congress, Tejpur Branch, and further the secretary of the mill mazdoor union had filed an affidavit supporting the dismissed employee. No evidence, however, was given in that case to show either that the Indian National Trade Union Congress, Tejpur Branch, had authorized its secretary to take up the case of the workman with the Government or that the mill mazdoor union had authorized its secretary to represent his case. In those circumstances, it was held by that Court that the report of the secretary, Indian National Trade Union Congress or the affidavit of the secretary of the mill mazdoor union was not sufficient to show that the case of the dismissed employee was taken up by the union or the workmen of the industry, and it was held that the dispute was not an industrial dispute. This case stands on a stronger ground. Not only there is no evidence to prove the authority of Sri Malviya to represent their case, but also there is positive evidence that the Kotma Colliery Labour Union refused to represent Nair and Mhaskar. In the circumstances, it must be held that the dispute in the present case was not an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act; it was an individual dispute in which no union or workmen were interested. The learned chairman of the industrial tribunal entirely overlooked these facts and wrongly rejected the objection of the petitioners as to the competency of the reference. On the facts stated above, he had no alternative but to hold that there was no industrial dispute in the present instance, and he had no jurisdiction to adjudicate upon it.

9. That being so, the reference of the dispute by the Central Government under Section 10 of the Industrial Disputes Act was illegal and without jurisdiction, and consequently did not confer jurisdiction upon the tribunal, The subsequent proceedings before the tribunal were, therefore, without jurisdiction. In the circumstances, the order of the tribunal dated 7 July 1958, must be quashed. The rule is accordingly made absolute. In the circumstances of the case, there will be no order for costs.

Ramaswami, C.J.

10. I agree.

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