JUDGMENT
Leila Seth, C.J.
1. I have had the advantage of reading the judgments of both my learned brothers, which they are about to deliver. Since the various decisions of the Supreme Court and the High Courts as well as the provisions of law and the facts have been dealt with in detail in the said judgments, I do not intend to repeat them. However, the following conclusions can be culled out from the various decisions and provisions.
1. A mere demand made to the Government cannot become an industrial dispute without it being raised by the workmen with their employer.
2. If such a demand is made to the Government it can be forwarded to the management and if rejected, becomes an industrial dispute.
3. Though it is apparent that for a dispute to exist there must be a demand by the workmen on the employer, this demand need not be in writing, unless the matter pertains to a public utility service, in view of the provisions of Section 22 of the Industrial Disputes Act, 1947.
4. The demand need not be sent directly to the employer; nor is it essential for it to be made expressly; it can be even implied or constructive, e.g., by way of filing an appeal or refusal of an opportunity to work, when demanded by the workmen. A demand can be made through the Conciliation Officer, who can forward it to the management and seek its reaction. If the reaction is negative and not forthcoming and the parties remain at logger-heads, a dispute exists and a reference can be made.
5. Whether a dispute exists has to be decided in each case and is dependent on the facts and circumstances of that case. The crucial time for this examination is the date of making the reference; material which comes into existence after the reference has been made is not relevant.
6. Only that dispute which exists or is apprehended can be referred. If there is a different kind of demand made before the management and the reference pertains to some other demand, then the reference is incompetent, e.g., reference pertains to reinstatement whereas the demand pertains to retrenchment compensation.
7. The jurisdiction of the Labour Court/Industrial Tribunal is limited to the points specifically referred and matters incidental thereto. Since the scope of its jurisdiction and power is circumscribed by the order of reference, it is not permissible for it to go beyond the terms of reference.
8. Thus if a reference is made without any demand having been made on the employei either expressly or impliedly, there is no occasion for the employer to point out the nature of the dispute so as to facilitate the Government making an appropriate reference of the dispute. There is a thin line of difference between a lock-out and a closure and proceeding on the assumption that there was a lock-out and not referring this question will make the reference incompetent.
2. Applying these conclusions to the facts of the present case, we have to examine what was the dispute or difference regarding which a demand had been made by the workmen to the employer which had been denied by it. The demand of the workmen originally pertained to their charter of demands dated December 20, 1985 regarding certain service conditions. Subsequently on June 20, 1986 six workmen were suspended for alleged misbehavior. Thereafter, the revocation of the suspension order also became a matter of dispute. On July 23, 1986 the Conciliation Officer submitted a failure report.
3. According to the employer on June 30, 1986,thirty other workmen abandoned work. They were given show cause notices to which they replied. They were then informed that as a result of their failure to report for duty they were no longer in employment w.e.f. August 1, 1986 but as old employees could join by August 14, 1986 as fresh appointees. The workmen were of the view that their services had been terminated unfairly.
4. Since there was labour unrest, the Conciliation Officer issued a notice on August 22, 1986 to the employer as well as the Union to be present for conciliation on September 2, 1986. Admittedly, no one on behalf of the workmen was present on that day whereas the employer’s representative was present. Consequently, nothing happened on that day. But on October 27, 1986 a fresh notice was issued fixing November 6, 1986. On November 6, 1986 the workmen’s representative was present but the employer’s representative was not present.
5. It is not in dispute that it was for the first time on November 6, 1986 that the Union raised the question of termination of the thirty workmen and their reinstatement. This was raised before and Conciliation Officer when the management’s representatives were admittedly not present, though they had been present on the earlier date on September 2, 1986 when no one was present on behalf of the workmen. Admittedly, this demand was not communicated to the employer either by the workmen or the Conciliation Officer or in any other manner. The Conciliation Officer noted in his proceedings on that very date that the management was not interested to reinstate the thirty workmen as they were not participating in the proceedings; subsequently on November 19, 1986 without the demand regarding termination and reinstatement of the thirty workmen having been communicated to the management, he submitted a failure report. On January 19, 1987 the Labour Commissioner endorsed the recommendations of the Conciliation Officer and sent the matter to the State Government to make a reference. The reference subsequently made on February 2, 1987 under Section 12(5) of the Act proceeds on the assumption that the thirty workmen were terminated and pertains to the question of its justification and relief.
6. Since the demand regarding termination and reinstatement of the thirty workmen was never raised by the workmen or their Union before the employer nor was any such demand communicated to the employer, it is clear that the State Government was not competent to refer this question as an industrial dispute for adjudication by the Tribunal.
7. It is settled law that the Tribunal cannot travel beyond the terms of reference except for incidental matters. The management would be debarred from contending that the nature of the dispute was something different to what had been referred. The reference here is on the assumption that termination had taken place. The question referred is whether it was “justified and in order”. The Tribunal cannot enlarge the scope of the enquiry to decide the question of abandonment of service.
8. If a demand regarding termination and reinstatement of the thirty workmen had been raised and received by the management, then it would have been open to the employer to place the facts pertaining to abstention from work and abandonment and a proper reference could have been made regarding the real question in dispute. This was not done; nor did the Conciliation Officer sent the demand raised before him, by the workmen, on November 6, 1986 to the employer for its reaction. He should have done so and fixed another date especially as the management was present on the earlier date and the workmen were not; instead he hastily came to the conclusion that the non-attendence of the management on November 6, 1986 meant that they were denying the demand.
9. Consequently, I concur with my brother ‘ Mr. Justice Devinder Gupta and make the rule absolute and quash the notification Annexure P-4. However, I make no order as to costs.
10. Before parting with the case it is clarified that it will be open to the State Government to make a fresh reference in accordance with law.
Bhawani Singh, J.
11. The petitioner is a private limited Company. It has its factory at Mehatpur in District Una of Himachal Pradesh. The present petition has been moved through Manmohan Singh, who is the Managing Director of the Company. The facts giving rise to the filing of this petition may be narrated thus.
12. Fourth respondent served a demand notice dated December 20, 1985. The Conciliation Officer conducted conciliation proceedings between the parties. However, the management suspended six workmen who were the office bearers of the union. As a result of this development, thirty workers went on strike on June 30, 1986. The petitioner says that six workmen were suspended for misconduct and the rest abandoned work of their own.
13. The petitioner issued certain communications to these workmen. Through communication dated July 2, 1986, it pointed out to the workmen that they were not interested to serve the petitioner and had abandoned their services. They were called upon to explain within two days of the receipt of the communication why their services should not be terminated (Annexure P1) and, on July 21, 1986 (Annexure P 2) the workmen were given last opportunity to join duty upto July 26, 1986 failing which the management would be compelled to terminate the services. Then, on July 31, 1986 (Annexure P 3) the workman were informed that since they failed to report for duty on the due date, they were no more employees of the factory from August 1, 1986, though they were given the option to join duty by August 14, 1986 as fresh appointees. Copies of these two later communications have been sent to different authorities like the Deputy Commissioner, Una, the Superintendent of Police, Una, Labour Commissioner to Government of Himachal Pradesh, Labour Officer, South Zone, Solan, Labour Inspector, Una Circle, and Employment-cum-Conciliation Officer, Una.
14. The workmen sent their replies to the aforesaid notices of the petitioner receipt of which has been acknowledged by the petitioner in notice dated July 21, 1986 (Annexure P2). Since these replies were not placed on the record of this petition by the parties and the respondents were heavily relying upon them during the course of their submissions in the case, the petitioner was directed on December 26, 1991 to the place the same before the Court, since the workmen had not retained the copies of their replies with them. It was in pursuance of this direction that the replies by the workmen have come on the record of this case.
15. The labour trouble continued in the petitioner – Company and took serious turn after the suspension of six workmen and going on strike of other thirty-two. This fact has been admitted by the petitioner in para 2 of the written statement before the Labour Court (Annexure P 6), in the following terms:
“…………………and during this strike the Law and Order situation was created to such an extent that the State of Himachal Pradesh had lo interfere and as a result, serious criminal cases have been registered against the workmen. These cases are still pending in the Courts. So much so, the striking workers created atmosphere of lawlessness and the management was forced to close down the factory for about a year. Various letters were issued to striking workmen to resume their duties, but all efforts of the management and authorities proved futile.”
Again in para 3 of this written statement, it has been stated that:
“……………..As submitted above, the workmen at their own, without any notice during the pendency or the conciliation proceedings, went on illegal strike and paralysed the functioning of the factory and created an atmosphere of lawlessness…………….,..”
Further in para 2 of the amended written statement before the Labour Court (Annexure P 9) it has been stated that:
“……………………….The workmen had committed several incidents of sabotage in the factory resulting in damage to machinery/ equipment and stoppage of factory and loss of production. As a last resort a complaint (Annexure ‘A’) had to be filed on April 4, 1986 with the police on account of wilful and intentional cutting of wire-mesh of paper manufacturing machine. The wire was then of the cost of about Rs. 30,000/-. This brought the factory to standstill resulting in huge loss in production……………………….On May 29, 1986, the management learnt that Sh. Ajit Ram and Sh. Gulzari Lal s/o Sh. Atma Ram had filed a false complaint on May 24, 1986 with the Police against the Executive Director of the company that he had pushed and misbehaved with Shri Ajit Ram and slapped Shri Gulzari Lal and had therefore served them with a charge sheet (Annexure ‘D’) on June 20, 1986, after carefully considering their replies to the charge sheet, the above six workmen were placed under suspension pending enquiry. Thereafter, these suspended workmen created law and order problem, blocked the factory gate, obstructed the labour from going to their duty in the factory and were not allowing to bring even the essential commodities of daily use of some families with children residing inside the factory. A complaint to that effect was filed with the police (Annexure ‘E’) and their assistance sought. Instead of persuading the suspended workmen to face and cooperate in the enquiry, the claimant 30 workmen went on lightning totally unjustified strike w.e.f. April 30, 1986 to join in their lawless activities. They had not given any advance notice of their intention of going to strike to the management. They picketed the factory gate, abused and intimidated the willing workmen. At times they became violent and tried to snatch belongings of the willing workers and servants of staff living inside the factory and were clearly guilty of unfair labour practices mentioned at Clauses 2 (b) and 8 of Part II of Fifth Schedule of Industrial Dispute Act. This was duly brought to the notice of the Labour Commissioner vide letter dated July 2, 1986 (Annexure F).
The workmen who were instigated and incited by outside elements belonging to the Bhartia Mazdoor Sangh had created such a law and order situation that police had to arrest some of the BMS leaders (vide report dated July 11, 1986, July 14, 1986 and July 15, 1986 Annexures ‘D’ & ‘H’). Several cases were filed by the Police against these workmen for various offenses which are being tried in the court at Una…………………………………….On July 2, 1986 the management charge sheeted these 30 workmen for absence from duty w.e.f. June 30, 1986 (Annexure T) In their similar replies (Annexure ‘J’), they categorically stated that they would remain on strike till the six suspended workmen are not taken on duty……………………….. ……………….. (Emphasissupplied).
16. In Civil Writ Petition No. 114 of 1989 Village Papers Private Ltd. v. State of Himachal Pradesh and Ors.) there are two communications (Annexure R/l and Annexure R/2) which show the seriousness of the labour unrest at the factory site. By police radio message dated August 8, 1986 the Deputy Commisioner, Una informed the Secretary (Home) to Government of Himachal Pradesh, Labour Commissioner and Divisional Commissioner, Dharamshala that:
“Dharna by the Village Paper Mill workers Mehatpur (BMS) is continuing to press their demand for the reinstatement of their six suspended workers(.) The management through a fresh notice has directed the striking workers to join their duties by August 14, 1986 on fresh appointment, failing which they would be treated as no more workers of the factory.”
By the second communication of August 11, 1986 (Annexure R/2), the Deputy Commissisoner had informed these authorities again and this message is as under:
“Dharna by Village Paper Mill Workers Union Mehatpur BMS is continuing to press their demand for the reinstatement of six suspended workers (.) On August 9, 1986 evening they took out procession (125/150) from dharna venue led by Vijay Singh, Genl. Secy. H.P. BMS and marched upto Mehatpur Bazar where they blocked vehicular traffic from 5.40 to 6.30 P.M. (.) Vijay Singh, Jagat Ram AITUC and Surinder Singh of Dehlan addressed the workers and warned that if demand of Paper Mill Workers is not conceded within three days they would stage dharna before D.C. Office Una(.) Further said that they would take out procession at Una on August 15/16, 1986. During the celebration on Independence Day (.) Nine workers of Village Paper Mills including Vijay Singh Genl. Secy. H.P. BMS were arrested in case FIR No. 142 dated August 9, 1986 u/s 341/342/147/506 IPC PS Una.”
17. Looking to the seriousness of the problem, the Labour Commissioner, Himachal Pradesh directed the Labour Officer, Solan to intervene in the matter immediately. Accordingly, the Labour Officer issued notice on August 22, 1986 to the parties. The petitioner attended the conciliation proceedings on September 2, 1986 but the representatives of the workers did not attend it. On October 27, 1986 the parties were called upon to attend the meeting on November 6, 1986. This time, the representatives of the workers’ union attended the meeting and the petitioner was not represented at all.
Two of the demands discussed in these proceedings r elated to the revocation of the suspension order of certain workmen and the reinstatement, with back wages, of all the thirty workers. This is apparent from Annexure R 6 and the proceedings of November 6, 1986. The representatives of the workers demanded the reinstatement of all the thirty workmen and said that the management did not attend the meeting knowingly when they were informed in time. It is relevant to quote the findings and the report of the Conciliation Officer under Section 12 (4) of the Industrial Dispute Act, 1947:
“………………….The management knowingly not attended the said conciliation meeting when they were informed by this office registered well in time. Their non-attendance of the said conciliation meeting, it seems that they are not ready to reinstate all these 30 workers (List of workers enclosed). The representatives of the workers requested the Conciliation Officer (Labour Officer) to send the failure report to the Govt. and they also stated that when the management is not interested to participate in the meeting then there is no need to fix another conciliation meeting.
After going through the statement of the representative of the workers and the attitude of the management, not participating in the conciliation meeting, it seems that they are not interested to re-instate all these workers. It is therefore recommended that the cases of these 30 workers may kindly be referred to the Labour Court for adjudication please.”
In this way, the second attempt of the respondents (1 to 3) to settle the dispute between the parties also failed.
18. The matter was considered at the appropriate level in the Government and after considering the report and other material on the subject, notification dated February 2, 1987 (Annexure P 4) was issued and the matter was referred to the Labour Court to adjudicate on the following issue:
“Whether the termination of 30 workers (List attached) by the management of M/s, Village Paper (P) Ltd., Mehatpur District Una (HP) is justified and in order. If not, to what relief and amount of compensation these workers are entitled ?”
19. Before the Labour Court, the petitioner raised certain preliminary objections. One of the pleas is that no demand was served on the petitioner with regard to the termination of these workers with the result that the reference-order is illegal and the Labour Court has no jurisdiction to decide the matter. The petitioner also insisted that preliminary issue in terms of pleas taken in paras 1 to 4 of the preliminary objections be framed in addition to the following two issues:
(1) Whether the termination of thirty workers detailed in the list enclosed with the reference is justified and in order? OPR.
(2) Relief.
This application was rejected by Labour Court on January 30, 1989 (Annexure P 8) holding, inter alia, that the objection raised by the petitioner was wholly vague and misconceived as the discharge, dismissal, retrenchment or termination is deemed to be industrial dispute notwithstanding that any union of workers is party to such dispute. This order was challenged in Civil Writ Petition No. 114 of 1989 (Village Papers Private Ltd. v. State of Himachal Pradesh and Ors.) which was withdrawn on August 9, 1990.
20. In addition to what has been extracted above, the defence of the respondents is that the petitioner was responsible for creating the whole situation. Six workmen were suspended by the management as a result of which other workmen went on strike and the matter took a serious turn. Relating to the question of raising the demand about the reinstatement of terminated workmen, it has been stated that it was raised with the management and discussed in both the conciliation proceedings. It has also been stated that conciliation proceedings are not mandatory and the State Government can refer the matter to the Labour Court without asking the Conciliation Officer to intervene in the matter if the situation so demands nor is it necessary that the Government should wait for the failure report of the Conciliation Officer before referring the matter to the Labour Court. The report of the Conciliation Officer has been defended and acted upon in referring the matter for adjudication to the Labour Court.
21. Simply stated, Shri Vijay Gopal, learned counsel for the petitioner, submitted that the workmen did not raise the demand of reinstatement with the management which is a mandatory requirement and raising of the demand during the conciliation proceedings, in the absence of the employer, does not bring the matter within the definition of industrial dispute and as such, neither conciliation proceedings are possible nor can the matter be referred to the Labour Court for adjudication. When there is no dispute, the Government cannot refer the matter for adjudication to Labour Court which is also incompetent to decide the same. In support of this contention, reliance was placed on 1968-I-LLJ-834 (SC) (Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujart and Ors., wherein it has been observed that: (pp. 839-840):
“………………….Since no such dispute about reinstatement was raised by either of the respondents before the management of the appellant, it is clear that the State Government was not competent to refer a question of reinstatement as an industrial dispute for adjudication by the Tribunal. The dispute that the State Government could have referred competently was the dispute relating to payment of retrenchment compensation by the appellant to respondent No. 3 which had been refused. No doubt, the order of the State Government making the reference mentions that the Government had considered the report submitted by the Conciliation Officer under Sub-section (4) of Section 12 of the Industrial Dispute Act, in respect of the dispute between the appellant and workmen employed under it, over the demand mentioned in the Schedule appended to that order; and, in the Schedule, the Government mentioned that the dispute was that of reinstatement of respondent No. 3 in the service of the appellant and payment of his wages from February 21, 1958. It was urged by Mr. Gopalakrishnan on behalf of the respondents that this Court cannot examine whether the Government, in forming its opinion that an industrial dispute exists, came to its view correctly or incorrectly on the material before it. This proposition is, no doubt, correct; but the aspect that is bejng examined is entirely different. It may be that the Conciliation Officer reported to the Government that an industrial dispute did exist relating to the reinstatement of respondent No. 3 and payment of wages to him from February 21, 1958 but when the dispute came up for adjudication before the Tribunal, the evidence produced clearly showed that no such dispute had ever been raised by either respondent with the management of the appellant. If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their employer. An industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer, cannot become an industrial dispute. Consequently the matter before the Tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the tribunal, had ever existed between the appellant-Corporation and the respondents and the State Government, in making a reference, obviously committed an error in basing its opinion on material which was not relevant to the formation of opinion. The Government had to come to an opinion that an industrial dispute did exist and that opinion could only be formed on the basis that there was a dispute between the appellant and the respondents relating to reinstatement. Such material could not possibly exist when, as early as March and July, 1958, respondent No. 3 and respondent No. 2 respectively had confined their demands to the management to retrenchment compensation only and did not make any demand for reinstatement. On these facts, it is clear that the reference made by the Government was not competent. The only reference that the Government could have made had to be related to payment of retrenchment compensation which was the only subject-matter of dispute between the appellant and other respondents.”
22. This decision has been followed by the Delhi High Court in (AIR) 1970 Delhi 60 (Fedders Lloyd Corporation (Pvt)Ltd. v. Lt. Governor, Delhi through Under Secy. (Labour), Delhi and Ors.), in para 13 of the judgment the Court said:
“13. In our anxiety to understand precisely what the Supreme Court meant I studied the whole of their decision and also the Gujarat High Court decision reported in (1965-11-LLJ) 268 (Guj), which was reversed by the Supreme Court. At page 271 of the report of the Gujarat High Court Judgment it is stated that respondent No. 3 had made a complaint to his Union, respondent No. 2, who thereupon presented the demand to the Corporation for the reinstatement of respondent No. 3. But the Supreme Court has held that the evidence before the Tribunal clearly showed that no such demand was made by the workman concerned or by the Union on the Management of the Sindhu Resettlement Corporation and I feel bound to accept this later position. The Supreme Court has also clarified that even if the Conciliation Officer found that an industrial dispute existed and so reported to the Government, this could not be regarded as the existence of the industrial dispute which has to be founded upon a demand by the workmen on the employers. If this is the ratio of the Supreme Court decision, it cannot be said that an industrial dispute existed in the present case as no demand was made by respondent No. 3 on the petitioner-company before he made an application under Section 10(2) for reference. In that event the fact that the demand of respondent No. 3 was forwarded by the Conciliation Officer to the petitioner-company and was not accepted by the latter would not constitute an industrial dispute….
We are of the view that the decision of the Supreme Court in (AIR) 1968 SC 529 referred to above, has finally established the proposition that a demand by the workmen must be raised first on the management and rejected by them before an industrial dispute can be said to arise and exist and that the making of such a demand to the Conciliation Officer and its communication by him to the Management, who reject the same is not sufficient to constitute an industrial dispute. The decisions and dicta of some of the High Courts to the contrary can no longer be considered good law.”
23. Thereafter, the similar view was taken in Delhi Transport Corporation v. Delhi Administration, 1973-II-LLJ-307 and New Delhi Tailoring Mazdoor Union v. S.C. Sharma and Co. 1978 (39) FLR 195 Delhi. Orissa High Court also held the same view in 1976 LAB. I.C. 285 (Ors) [Orissa Industries (P.) Ltd. v. Presiding Officer, Industrial Tribunal and Ors. ]
24. Respondents No. 1 to 3 contended that the petitioner had constructive notice of this demand and it participated in the conciliation proceedings where the demand for reinstatement was discussed. It was on November 6, 1986 that the petitioner did not appear before the Reconciliation Officer intentionally although serious and genuine attempts to secure the presence were made. On account of the stiff stand taken by the party, the Conciliation Officer had no option but to come to the conclusion that the settlement between the parties was not possible and the only remedy, in the facts and circumstances of the case, was to make a reference to the Labour Court for adjudication.
25. Mr. Chhabil Dass, learned Advocate General also made extensive reference to the official records to point out the seriousness of the situation and the requirement of taking immediate action in the matter, as already noticed. He also submitted that the initiation of proceedings before the Conciliation Officer was not a necessary requirement and the Government could refer an existing or an apprehended dispute where there is material to that effect.
26. Mr. Muldip Singh, who appears for the fourth respondent, has supported the submissions made by the learned Advocate General. Specially, according to him, certain demands were served in writing while Ors. arose from time to time but all of them were known to the management which was unwilling to accept them. Reference to replies to notices issued to workmen and the recalcitrant attitude of the management to appear before the Conciliation Officer to avoid reinstatements of all the workmen, was enough to demonstrate the refusal of their demands. Since the demands went on multiplying with the passage of time, it was impracticable to serve them in writing. These facts could be proved by production of evidence before the Labour Court but that stage has not as yet come. Despite notice, the petitioner failed to appear before the Conciliation Officer on November 6, 1986. The report given by the Conciliation Officer in such a situation is absolutely correct and in accordance with law. Similarly, the reference of the dispute is legally permissible and the Labour Court had jurisdiction to decide the same. The petitioner is trying to delay the proceedings intentionally in order to harass the workmen.
27. The respondents placed reliance on large number of decisions. It was contended by Mr. Chhabil Dass, learned Advocate General, that Sindhu Resettlement Corporation case (supra) has been decided on its own facts. According to him, this decision does not apply to the facts of this case which is covered by the decision of the Supreme Court reported in 1978-I-LLJ-484 Shambu Nath Goyal v. Bank of Baroda. There is great substance in this submission. It is true that this decision, as a matter of fact, touches the question in controversy to the greatest extent. It is important to refer to this decision extensively. The Bank of Baroda had raised a preliminary objection that as no demand in respect of the dismissal of the workman had been made upon the management, there was no industrial dispute in existence and, therefore, the reference made by the Government under Section 10 of the Industrial Dispute Act was in competent. The Industrial Tribunal upheld this objection and held that as no demand, either oral or in writing, was made by the concerned workman before approaching the Conciliation Officer, there was no dispute in existence on the date of the reference and, therefore, the reference made by the Government was incompetent. Defining “industrial dispute”, the Court held in paras 5 and 6 that (pp. 485-486):
“5. A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the dispute or difference is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service, because S. 22 forbids going on strike without giving a strike notice. The key words in the definition of industrial dispute are ‘dispute ‘or’ difference’. That is the connotation of these two words. In Beetham v. Trinidad Cement Ltd.,(1960)1 ALLER 274 at p. 279, Lord Denning while examining the definition of expression’trade dispute’ is Section 2 (1) of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidad observed:
‘By definition a ‘trade dispute’ exists whenever a ‘difference’ exists and a difference can exist long before the parties become locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should be spurring for an opening.”
“6. Thus the term ‘industrial dispute’ connotes a real and substantial difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section.”
Again in para 6, the Court said that (pp. 486-487):
“7. The reference in the case before us was made under Section 10(1) which provides inter alia that where the appropriate Government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing refer the matter for adjudication as therein mentioned. The power conferred by Section 10 (1) on the Government to refer the dispute can be exercised not only where an industrial dispute exists but when it is also apprehended. From the material placed before the Government, Government reaches an administrative decision whether there exists an industrial dispute or an industrial dispute is apprehended and in either event it can exercise its power under Section 10 (1). But in making a reference under Section 10 (1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial determination. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because in its opinion there was no material before the Government on which it could have come to an affirmative conclusion of those matters, (vide State of Madras v. C.P. Sarathy 1953-I-LLJ-174 The Tribunal however, referred to the decision of this Court in Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal, 1968-I-LLJ-834 in which this Court proceeded to ascertain whether there was in existence an industrial dispute at the date of reference, but the question whether in case of an apprehended dispute Government can make reference under Section 10 (1) was not examined. But that apart the question whether an industrial dispute exists at the date of reference is a question of fact to be determined on the material placed before the Tribunal with the cautions enunciated in C.P. Sarathy’s case (supra). In the case before us, it can be shown from the record accepted by the Tribunal itself that there was in existence a dispute which was legitimately referred by the Government to the industrial Tribunal for adjudication. Undoubtedly, it is for the Government to be satisfied about existence of the dispute and the Government does appear to be satisfied. However, it would be open to the party impugning the reference that there was no material before the Government, and it would be open to the Tribunal to examine the question, but that does not mean that it can sit in appeal over the decision of the Government and come to a conclusion that there was no material before the Government.
8. In this case the Tribunal completely misdirected itself when it observed that no demand was made by the workman claiming reinstatement after dismissal. When the inquiry was held, it is an admitted position, that the workman appeared and claimed reinstatement. After his dismissal he preferred an appeal to the Appellate forum and contended that the order of dismissal was wrong, unsupported by evidence and in any event he should be reinstated in service. If that was not a demand for reinstatement addressed to employer, what else would it convey? The appeal itself is a representation questioning the decision of the Management dismissing the workman from service and praying for reinstatement. There is further a fact that when the union approached the Conciliation Officer the Management appeared and contested the claim for reinstatement. There is thus unimpeachable evidence that the concerned workman persistently demanded reinstatement. If in this background the Government came to the conclusion that there exists a dispute concerning workman S.N. Goyal and it was an industrial dispute because there was demand for reinstatement and a reference was made, such reference could hardly be rejected on the ground that there was no demand and the industrial dispute did not come into existence. Therefore, the Tribunal was in error in rejecting the reference on the ground that the reference was incompetent……………………….”
28. It is absolutely clear from this decision that Sindhu Resettlement Corporation case (supra) turns on the facts peculiar to that case. Further, the question whether in case of apprehended dispute Government can make a reference under Section 10(1), was not examined. The Court itself distinguished this case in para 7 of its judgment and also pointed out that the question of existence or non-existence of an industrial dispute at the date of reference is a question of fact to be determined on the material placed before the Tribunal with the caution enunciated in C.P. Sarathy’s case (supra).
29. Again, this question came before the same Bench of the Supreme Court in Avon Services v. Industrial Tribunal, 1979-1-L.L.J. 1, and the Court, referring to Sindhu Resettlement Corporation case (supra), said that (p 7):
“The decision turns purely on the facts of the case. In the case before us the union complained about illegal termination of service and demanded reinstatement with back wages. The Government subsequently made a reference about the validity of the retrenchment and the relief to which the workmen would be entitled. It is thus crystal clear that there was a demand about reinstatement, complaining about the illegality of termination of service and the same had been referred to the Tribunal. Therefore, it is not possible to accept the contention that on this account the reference is incompetent. In this view of the matter it is not necessary to examine the contention raised on behalf of the respondents that the decision in Sindhu Resettlement Corporation Ltd. (supra) ignores or omits to take note of the expression “difference” used in the definition of industrial dispute in Section 2(k) as also the power of the Government not only to refer a dispute which exists but one which is apprehended in the sense which is imminent or is likely to arise in near future and which, in order to arrest in advance threatened or likely disturbance to industrial peace and harmony and a threat to production has to be referred to the industrial Tribunal for adjudication.”
Dealing with Section 10 of the Act, the Court further held that (p 4):
“Section 10 (1) of the Act confers power on the appropriate Government to refer at any time any industrial dispute which exists or in apprehended to the authorities mentioned is the section for adjudication. The opinion which the appropriate Government is required to form before referring the dispute to the appropriate authority is about the existence of a dispute or even if the dispute has not arisen, it is apprehended as imminent and requires resolution in the interest of industrial peace and harmony. Section 10 (1) confers a discretionary power and this discretionary power can be exercised on being satisfied that an industrial dispute exists or is apprehended. There must be some material before the Government on the basis of which it forms an opinion that an industrial dispute exists or is apprehended. The power conferred on the appropriate Government is an administrative power and the action of the Government in making the reference is an administrative act. The formation of an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. Thus, the jurisdictiona1 facts on which the appropriate Government may act are the formation of an opinion that an industrial dispute exists or is apprehended which undoubtedly is a subjective one, the next step of making reference is an administrative act. The adequacy or sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny.”
30. Mr. Chhabil Dass, learned Advocate General, next referred to the decision of Madras High Court in C. Manuel v. Management of Needle Industries (India) Ltd. Keeti, Nilgris and another), 1981-II-LLJ-102 to substantiate his contention. Particular emphasis was made on paras 22,23 and 26 of the judgment, wherein the learned Judge held that (pp. Ill-113):
“11. We can take it as settled that a dispute could arise within the meaning of Section 2(k) of the Act only when there is a demand by the workman and a denial of the same by the management. The definition of dispute under Section 2(k) of the Act takes in difference between the parties also. It is one thing to say that there must exist a dispute or a difference so as to clothe the appropriate Government with the jurisdiction to refer the matter for adjudication under Section 10 of the Act and it is another thing to say as to how the dispute or difference must have arisen and existed or apprehended at the relevant point of time. Neither the statute law nor any of the judicial pronouncements referred to above, lay down that a demand could not be made through the conciliation officer and a denial of the same could not be expressed before the conciliation officer. Section 20 of the Act which has been extracted above speaks about commencement of conciliation proceedings with reference to notice of strike or lock-out under Section 22 of the Act or where there is an order referring the dispute to a Board. The definition of conciliation proceedings is found in Section 2 (e) of the Act and it runs as follows;
“‘Conciliation proceeding’ means any proceedings held by a conciliation officer or Board under this Act;”
It is not of much help apart from conveying that it will refer to only proceedings held by a conciliation officer or Board under the Act. The chances of workman or workmen raising a demand on the management through the conciliation officer cannot be said to have been completely ruled out or prohibited by the provisions of the Act. Nothing need prevent the Conciliation Officer on the receipt of the demand by the workman or workmen or the union, from forwarding the same to the management and obtaining its reaction and if the reaction is negative, then to commence the conciliation because by the demand and refusal of the same, a difference must be deemed to have arisen between the parties.”
“23. It may not be always necessary that conciliation should be resorted to under Section 12 of the Act and the report of the conciliation officer should be there for the appropriate Government to exercise the power of reference under Section 10 of the Act. Even without resort to conciliation proceedings, the reference of an industrial dispute existing or apprehended, under Section 10 of the Act is proper. If this is remembered, then, the relevant point of time to find out as to whether there exists an industrial dispute or an industrial dispute is apprehended is the time at which the appropriate Government forms the opinion for the purpose of reference under Section 10 of the Act. If the proceedings before the conciliation officer and his failure report have preceded the action under Section 10 of the Act, they clinch the issue in that there cannot be any doubt that they evidence the existence and continuation of an industrial dispute at the time the appropriate Government forms the opinion for the purpose of reference under Section 10 of the Act. The materials for the appropriate Government for the formation of the requisite opinion could be found in the failure report of the conciliation officer. If the matter got agitated before the conciliation officer and has terminated before him in the form of a failure report, nothing more need be insisted upon to indicate that an industrial dispute exists to enable the Government to act under Section 10 of the Act. At that relevant point of the time the question of demand and refusal must be deemed to have lost its significance, because the very fact that the parties agitated the matter before conciliation officer and continued to remain at loggerheads is indicative of the position that the difference between them continues and exists at the relevant point of time for reference under Section 10 of the Act. In this connection it is worthwhile to remember that the dictum of the Supreme Court in State of Madras v. C.P. Sarathy 1953-I-LLJ-174 where a Bench consisting of five (earned Judges of the Supreme Court held that the disputes referred to a Tribunal under Section 10(1) (c) of the Act in order that the resulting award may be binding on any particular industrial establishment and its employees need not have actually arisen between them and the learned Judges further held that the contrary view does not give effect to the words (*or is apprehended’) in the section. The factum of existence of an industrial dispute or apprehension of an industrial dispute can be found even in the failure report of the conciliation officer at the time when the appropriate Government exercises the power under Section 10 of the Act.”
“26. The principles recognised by Courts including the highest in the land have not laid down any particular manner by which an industrial dispute or difference should be raised. The real question is whether if at the time of exercise of powers under Section 10 of the Act there exists or is apprehended an industrial dispute or difference, then it will be competent for the appropriate Government to exercise its powers under Section 10. Once that power has been exercised, it will be futile to go behind to some point of time anterior to the relevant point of time and explore as to whether a demand was raised in a particular manner by the workman on the management and whether such a demand was refused by the management. The parties having come to grips and the situation having not been eased out by any conciliation, the dispute or the difference must be deemed to have existed or apprehended at the point of time when the appropriate Government exercises its powers under Section 10 of the Act. That is the crucial point of time. If at an earlier point of time the appropriate Government opined that there are no grounds for reference yet, at a subsequent point of time which again becomes relevant, it changes its opinion and finds a warrant for reference such an act, which is undoubtedly an administrative one and not a judicial or quasi-judicial one, cannot be the subject-matter of review by this Court. The only relevant factor is that an industrial dispute must exist as a fact or as apprehended before the reference ismade…………………………………..”
31. Then next case on which the reliance was placed, is 1952-I-LU-493 (Standard Coal Company Limited v. S.P. Verma and Ors. where the Court held that (pp. 498-499):
“………………..There may be instances where workers may consider it wholly useless to make demand on the management and prefer to move the appropriate machinery set up by the Government for the redress of their grievances. Nevertheless, it will be an industrial dispute if it comes within the meaning of Section 2(k) of the Act……………………………”
32. In (AIR) 1970 Patna 295 (Management of Radio Foundation Engineering Ltd. and another v. State of Bihar and Ors.) the Court said in paras 15 and 16 of the judgment that:
“15. Learned Counsel for the petitioner strenuously pressed the third point and submitted, on the authority of the decisions in the cases of the Members of Sasamusa Workers Union v. State of Bihar, (AIR) 1952 Pat 210 and Sindhu Resettlement Corporation Ltd.v. industrial Tribunal of Gujarat, 1968-I-LLJ-834, that in absence of a demand and a refusal it could not be said that there was in existence any dispute or there was an apprehension of any dispute in regard to the alleged lock-out. In my opinion, there is no force in the argument put forward on behalf of the petitioner-company. A charter of demands had been made by the workmen in December, 1967. A conciliation proceeding was going on in regard to them. During the pendency of the conciliation proceeding, admittedly, something happened on or about May 15, 1968, resulting in the stoppage of the work. According to the case of the management, the workers stopped the work, while, according to the case of the latter, the place of employment was closed and there was suspension of the work followed by the refusal by the employer to continue to employ the workmen. The fact that the work was not carried on in the establishment of the petitioner company on May 15, 1968, is not in dispute. Naturally then a dispute arose as to what was the reason for the stoppage of the work, and the reason of that stoppage of the work was an industrial dispute within the meaning of the Act, as defined in Clause (k) of Section 2. It means any dispute or difference between the employer and the workmen. The dispute or difference was, as I have already said, that the workmen slopped the work, according to the employer, while according to the former, they were not allowed to work due to the closing of the place of employment and the suspension of the work. On the facts and in the circumstances of this case, therefore no specific demand by the workmen was necessary to bring out the existence of an industrial dispute, in the matter of the alleged lockout.
The workers brought this fact to the notice of the Government in the letter of the Sangh dated June 26, 1968 (Annexure 4/A). The President of the Sangh wrote to the Secretary to the Government of Bihar in the Department of Labour and Employment, that “the management has closed the site since May 15, 1968 unilaterally and the workers are not being allowed to work, neither they are being paid their wages, over time wages and other dues by the Company.” Further grievances were also ventilated and ultimately, a request was made “to take legal action against the management for non-payment of the dues of the workers and also prohibit the management not to shift any machines or tools from the work site as well as not to remove any worker from service.” Whatever may be the nature of the relief which the workers wanted from the Government, exercise of the powers under Section 10 of the Act does not depend upon the relief asked for by the workmen. The facts stated in Annexure ‘4/A’ clearly show that according to the workmen there was a lock-out within the meaning of Clause (1) of Section 2 of the Act. That being so, the Government was competent to make a reference under Section 10 of the Act in the form as it did. The question referred was, as would appear from Annexure ‘5’:
“Whether the alleged lock-out by the. management from May 15, 1968 was proper and justified? If not, to what relief and compensation the workmen are entitled.”
” 16. Section 23 of the Act says that no employer of workmen in any industrial establishment shall declare a lock-out during the pendency of a conciliation proceeding or under certain other conditions enumerated therein. It”, therefore, the workmen concerned approached the Government for the redress of their grievances because of the alleged lock-out, by bringing the facts to the notice of the Government, it is difficult to accept the contention put forward on behalf of the petitioner that there was no dispute raised before the management in that regard. The dispute obviously was there which resulted in the stoppage of the work. I may also add that I am inclined to think that the sine qua non of the exercise of the power under Section 10 of the Act is that in the opinion of the appropriate Government any industrial dispute must exist or there must be an apprehension in regard to that. In all cases it is not necessary that the dispute must be preceded by a demand and a refusal in express terms by the parties concerned. If on the evidence adduced before the Tribunal it is found that the industrial dispute did not exist or was not apprehended, the reference may be held to be incompetent. But, at this stage, to say that, merely because in express terms no such dispute was raised before the management by the workmen, there was in fact no dispute and hence the reference is incompetent, will not be correct. The question of the existence of a dispute or an apprehended one has got to be decided with reference to the facts of each case. If merely the workmen make a demand before the Government that they are entitled to get such and such wages or such and such amount of bonus, without making this demand before the management, it can be legitimately said, if I may say so with respect, as was said by a Bench of this Court in the case of the Members of the Sasamusa Workers Union, (AIR) 1952 Pat 210, that no dispute had actually cropped up, because no demand was made before the management, there was no refusal of the demand and hence there was no dispute.
It may also well be that if a different kind of demand is made before the management and the reference is of a different kind, then also the reference is incompetent, as was the case before the Supreme Court in (AIR) 1968 SC 529. The claim put forward before the management was for payment of retrenchment compensation and not for reinstatement, but the demand put forward before the Government was for a reinstatement also. In that situation, it has been said by Bhargava, J.:
“An industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer, cannot become an industrial dispute.”
In the facts of the instant case, the demand, as the case of the workmen is, put forward before the management on the May 15, 1968 was to allow them to work. The management would not allow them to work. The resultant of this dispute was an industrial dispute as to the alleged lock-out. No further demand in respect of that dispute was necessary and when a grievance was made before the State Government by the workmen concerned, the Government was competent to make a reference under Section 10 of the Act for adjudication of the dispute.”
33. Then, Mr. Chhabil Dass, learned Advocate General also referred to Division Bench decision of Patna High Court in Rohtas Industries Ltd. v. The State of Bihar and Ors. (1977 Lab. I.C(NOC).102 (Patna), where the observations of the Court are as under:
“Section 10 (1) requires that the appropriate Government must be of the opinion that an industrial dispute exists or is apprehended. If this condition is existing it is open to the appropriate Government to make an order of ‘ reference by following any of the four modes provided under Section 10 (1) in its four clauses whichever may be applicable and fit according to the circumstances of each case. The state of dispute is not relevant consideration, but the consideration germane for making a reference is the dispute. It would not make any difference as to whether the dispute between the employer and workmen was at the stage of workmen’s suspension or they happened to be dismissed in pursuance of the domestic enquiries that were held in the intervening time. The fact that the employer had preceeded in the matter of punishment which aggravated the situation of the industrial dispute would justify the appropriate Government in making reference under Section 10 and subsequent developments could not disentitle the appropriate Government from making such reference.”
34. In order to sustain the plea that resort to conciliation proceedings before making the reference to Labour Court is not necessary and the Government can even without or during the conciliation proceedings make reference for adjudication in an existing or an apprehended dispute, reliance was placed on C. Manuel’s case (supra) and M/s. Ramakrishna Mills (Coitn-batore) Limited Ganapathy Post Coimbatore v. The Government Tamilnadu and Ors., 1984-II-LLJ-259
35. Now, it is time to turn to the facts of the present case. It is clear that the fourth respondent raised certain demands through notice dated December 20, 1985. Conciliation proceedings were started on these demands. The petitioner also appeared before the Conciliation Officer, however, before these proceedings could end, the petitioner suspended certain office bearers of fourth respondent for misconduct and started disciplinary proceedings against them. On this, certain other workers went on strike. They were called upon to join the duty, but they insisted for the reinstatement of the suspended workmen. Ultimately, the petitioner terminated the services of these workmen also. The proceedings recorded by the Conciliation Officer-cum-District Employment Officer, Una in July, 1987 (at page 6 file LO (Sol) 23/86, suggest that these workmen had gone on strike on account of the suspension of the six workmen and they were prepared to call off the strike, provided these suspensions were revoked with past benefits. The petitioner was not prepared to reinstate them and the trouble persisted and the services of other thirty workmen were terminated from August 1, 1986 which added new dimension to the existing controversy. Looking to the seriousness of the matter and the failure of the first reconciliation proceedings, the Labour Officer, Solan was directed to intervene in the matter and make efforts to settle the same. The petitioner failed to appear in the conciliation proceedings on November 6, 1986 despite notice. The representatives of the workers requested the Reconciliation Officer to send failure report to the Government and they staled that when the management was not interested to participate in the meeting then there was no need to fix another conciliation meeting. In these circumstances, the Conciliation Officer failed to bring together the parties and settle the dispute which included the one relating to the termination of the workmen. Obviously, his report is in keeping with the situation that had developed. He has specifically recorded that the petitioner did not appear so that the reinstatement of the thirty workmen could be avoided.
36. Accordingly, facts of the case point out that a written charter of demands was served on the management. However, during the continuance of the reconciliation proceedings, the present dispute also cropped up and was subject matter of discussion before the Conciliation Officer. The demand for reinstatement of these thirty workmen was very well known to the petitioner and in case they had been reinstated, the matter would have ended there. But, the petitioner adopted a stiff attitude and did not reinstate these workers. The claim for a written demand for reinstatement of those workmen, in the facts and circumstances of this case, is hardly acceptable when the petitioner had already notice of it and was not prepared to reinstate the workmen. For coming into existence of an industrial dispute, a written demand is not a sine qua non except in case of public utility service (Section 22). Statute does not prescribe how demand(s) is to be communicated to the management, nor does it prescribe the manner of refusal. These are essentially the facts which can be ascertained from the evidence before the Labour Court which is not available in this case since the petitioner has approached this Court before the Labour Court could record the evidence and it is noticeable that the cases placed for our perusal by the learned counsel for the parties, came to the Courts after adjudication by the Labour Court. Moreover, it is indisputable that the discharge, dismissal, retrenchment or termination is an industrial dispute within the meaning of Section 2-A of the Industrial Disputes Act, 1947 and the contention that the services of the workmen were terminated, is of no substance in view of the express orders of termination already discussed above.
37. Even otherwise, the Government has power to refer to an existing or apprehended dispute for adjudication to the Labour Court under Section 10. This power is not controlled by Section 12 of the Act. Looking to the facts of the case, it is abundantly clear that the Government made all efforts to settle the dispute through conciliation and even the Conciliation Officer failed to bring the parties together, there was no other mode to settle the dispute except the way the Government has done by referring the same to the Labour Court for adjudication.
38. The result that emerges out of the aforesaid discussion is that there is no substance in this writ petition and the same is dismissed. The matter is abnormally old and deserves to be decided expeditiously. The petitioner will pay costs quantified at Rs. 5,000/- out of which Rs. 1,000 will be paid to respondents No. 1 to 3.
Devinder Gupta, J.
39. The petitioner-company in this writ petition filed under Article 226 read with Article 227 of the Constitution of India has questioned the legality and validity of the order of reference Annexure P-4 dated February 2, 1987 made by respondent No. 1 to respondent No. 2 under Section 12 (5) of the Industrial Disputes Act, 1947 (Act No. 14 of 1947) (hereinafter referred to as ‘the Act’).
40. The facts as revealed from the material placed on the record of the writ petition are that on December 20, 1985 a demand notice was served by respondent No. 4 Village Paper Mazdoor Sangh, the Workers Union, hereinafter to be referred as ‘the Union’, upon the petitioner-management, hereinafter to be called as ‘the employer,’ relating to certain demands of its workmen concerning their service conditions. In connection with this notice of demand, conciliation proceedings were pending before respondent No. 3. Due to the alleged misbehaviour and obstruction in the functioning of the petitioner’s concern, the employer on June 20, 1986, suspended six of its workmen. Later on, thirty-two workmen absented themselves from duty and struck work with effect from June 30, 1986. On July 2, 1986 a notice, Annexure P-l, was served by the employer upon the absenting workmen calling upon them to show cause as to why their services be not terminated due to their unauthorised absence from duty. The workmen justified their absence by sending their reply dated July 12, 1986. After noticing the contents of the reply, the employer on July 21, 1986 served another notice, Ex. P.2 on thirtytwo workmen pointing out that their absence coupled with the replies amounts to abandoning the work without notice. The workmen were called upon to join duty upto July 26, 1986; failing which the employer pointed out that it shall be compelled to terminate their services and they will be considered to be no more in the employment. On July 23, 1986 respondent No. 3 before whom conciliation proceedings were in progress, submitted to respondent No. 1 a failure report on the demands of the Union, as regards some service conditions for which notice dated December 20, 1985 had been sewed. On July 31, 1986 notice Annexure P-3 was served by the employer upon the absentee employee informing them that they having failed to report for duty from the due date, they were no more in the employment on and from August 1, 1986. However, being old employees they would be given preference, if they wished to join their duties within two weeks, that is, by August 14, 1986, as fresh appointees. On August 12, 1986, Labour Commissioner, Himachal Pradesh sent
a telegram, Annexure R-4, to Labour Officer,
Solan, bringing to his notice that labour trouble
was continuing in the concern. He was asked to
intervene immediately. On August 22, 1986 the 5
Labour Officer, before whom conciliation proceedings were earlier pending, sent notice Annexure R-5 to the petitioner as well as to the
Union informing that he had fixed conciliation
meeting for September 2, 1986 at 3 P.M. in his I1
office to settle the ‘prolonged disputes’. This
meeting was attended to on September 2, 1986
by the representatives of the employer only and
none appeared on behalf of the Union. No
proceedings took place. 1
41. On October 27, 1986 another notice Annexure R-5/A was sent to the employer as well as to the General Secretary of respondent Union informing that conciliation proceedings would take place on November 6, 1986. On November 2 6, 1986 none appeared before the Conciliation Officer on behalf of the employer. In the absence of the employer, the Union, on November 6, 1986 for the first time, raised a demand Annexure P 6 regarding reinstatement of thirty 2 workers by submitting the same in writing before the Conciliation Officer. Respondent No. 3 conducted proceedings on November 6, 1986 in the absence of the employer and prepared his report Annexure R-7, dated November 19, 1986 3 and sent the same to the Labour Commissioner as well as to respondent No. 1, being a failure report. The Labour Commissioner on January 19, 1987 by sending communication Annexure R-8 to respondent No. 1 endorsed the recommendation of respondent No. 3 in his failure report for making a reference on the question suggested in the said communication. On February 2, 1987 respondent No. 1 made a reference Annexure P-4 under Section 12 (5) of the * Act for adjudication by respondent No. 2 on the following question:
“Whether the termination of 30 workers (list attached by the Management of M/s. V.P.L. Mehatpur, District Una, (HP), is justified and in order? If not, to what relief and amount of compensation these workers are entitled?”
42. On receipt of reference respondent No. 2 commenced the proceedings for adjudication of the dispute. Respondent-Union preferred its claim on behalf of the workmen Annexure P-5 to which reply Annexure P-6 was submitted by the employer. In its reply the employer took up ‘a preliminary objection as regards the legality and validity of the reference. According to the employer in the absence of any demand by the workmen or the management, the proceedings before the authorities under Section 12 of the Act were illegal and reference deserved dismissal. By moving a separate application Annexure P-7 dated January 20, 1989 the employer made a prayer before respondent No. 2 for striking an issue and for its trial as a preliminary objection. On January 30, 1989 respondent No. 2 dismissed the said application, which necessitated the employer in challenging the said order by filing Civil Writ Petition No. 114 of 1989 in this Court. On August 9, 1990 the said writ petition was dismissed as withdrawn, since the employer expressed its desire to raise the objections, as regards the legality and validity of reference, at the appropriate stage before respondent No. 2. According to the petitioner, respondent No. 2 failed to take notice of the preliminary objection and was still proceeding ahead with the reference for which it has no jurisdiction to adjudicate.
43. The specific point which has been made the basis for challenging the order of reference is that no demand was ever raised, either orally or in writing, by the Union or any of its workmen upon the employer, in the absence of which it cannot be said that there was any ‘industrial dispute’ and accordingly respondent No. 1 neither had any authority, nor jurisdiction to make a reference for adjudication to respondent No. 2. Reference made, as such, was bad in law.
44. The petition has been opposed by respondents by filing separate returns. Respondents No. 1 and 3 have filed their return on the affidavit of the Labour Commissioner-cum-Director of Employment, Himachal Pradesh, and respondent No. 4 has filed its return on the affidavit of its Secretary. After the petitioner had filed its rejoinder, respondents No. 1 and 3 filed a sur-rejoinder on the affidavit of Joint Labour Commissioner and placed on record a number of documents.
45. Learned counsel for the parties have been heard and the record gone through.
46. It is contended on behalf of the petitioner that there should have been a demand directly made by the workmen or on their behalf by the Union on the employer, which on its refusal alone would constitute an ‘industrial dispute’. In other words, what was urged was that in order to constitute a valid reference by the Government under Section 12 (5) of the Act, an ‘industrial dispute’ must have arisen by a demand raised upon the employer by workmen followed by initiation of proceedings before the Conciliation Officer and on submission of failure report by him, which alone would give jurisdiction to the Government to make a reference. What further precisely was urged was that this demand should have been made in writing, as provided in Rule 3 of the Industrial Disputes Rules, 1974 framed by the State of Himachal Prndesh, hereinafter referred to as the Rules. Since in the instant case no demand, as envisaged in the Rules, was raised by the workmen or on their behalf by the Union directly on the employer, respondent No. 1 had no jurisdiction to make a reference and proceedings before respondent No. 2 were bad in law.
47. The second submission, which was made, was that the reference made by respondent No. 1 had pre-supposed that there was termination by the employer of thirty of its workers. According to the petitioner there was no termination, as such, but it was abandonment of work by the workers and since reference had been made without any notice to the employer and no demand had been raised, the reference was bad since it would not be within the competence of respondent No. 2 to go beyond the reference, in view of Sub-section (4) of Section 10 of the Act and to give any finding on the p’eas raised by the petitioner that in fact there was no termination but it was an abandonment of work by the workmen.
48. The submissions made on behalf of the petitioner have been refuted by the respondents by urging that conciliation proceedings were in progress before respondent No. 3. The very act of the employer in having terminated the employment of thirty workers was itself sufficient to constitute an ‘industrial dispute”, giving jurisdiction to respondent No. 1 to make a reference and otherwise also it was not necessary to raise demand directly upon the employer. The facts and circumstances would show that demand was impliedly made of which the employer will be deemed to have acquired knowledge, which was sufficient enough to give jurisdiction to respondent No. 1 to make a reference.
49. In order to appreciate submissions made by the learned counsel for the parties, it would be necessary to make reference to some of the relevant provisions of the Act and the Rules. ‘ Industrial dispute’ has been defined in Sub-section (k) of Section 2 of the Act:
‘”Industrial Dispute’ means any dispute or difference between Employers and Employers or between Employers and workmen, or between the workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.”
50. Section 10 empowers the appropriate Government to make a reference to the Boards, Courts and Tribunals. The relevant portion of Section 10 reads:
” 10. Reference of disputes to Boards, Courts or Tribunah-
(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing,-
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry’or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute,if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or theThird Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c):
Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexaliously given or that it would be inexpedient so to do, make a reference under this sub- section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced….”
Chapter IV of the Act deals with the procedure, powers and duties of various authorities under the Act, Duties of Conciliation Officers are enumerated in Section 12 of the Act as
under:
” 12. Duties of Conciliation Officers-
(1) Where any industrial dispute exists or is apprehended, the Conciliation Officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceeding in the prescribed manner.
(2) The Conciliation Officer shall, for the purpose of bringing about a settlement of the dispute, without delay investigate the dispute and all matters affecting the merits and the right settlement there of and may do all such things as be thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or any of the matter in dispute is arrived at in the course of the conciliation proceedings the Conciliation Officer shall send a report thereof to the appropriate Government or an officer authorised in this behalf by the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute.
(4) If no such settlement is arrived at, the Conciliation Officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal,it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.
(6) A report under this Section shall be submitted within fourteen days of the commencement of conciliation proceedings or within such shorter period as may be fixed by the appropriate Government:
Provided that subject to the approval of the Conciliation Officer the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute…..”
Section 20 deals with the commencement and conclusion of the proceedings from the stage of conciliation proceedings till the making of the award, which says:
“20. Commencement and conclusion ofpro-ceedings-
(1) A conciliation proceedings shall be deemed to have commenced on the date on which a notice of strike or lock-out under Section 22 is received by the Conciliation Officer or on the date of the order referring the dispute to a Board, as the case may be. :
(2) A conciliation proceeding shall be deemed to have concluded-
(a) where a settlement is arrived at when a memorandum of the settlement is signed by the parties to the dispute;
(b) where no settlement is arrived at, when the report of the Conciliation Officer is received by the appropriate Government or when the report of the Board is published under Section 17, as the case may be; or
(c) when a reference is made to Court, Labour Court, Tribunal or National Tribunal under Section 10 during the pendency of conciliation proceedings.
(3) Proceedings before an arbitrator under Section 10-A or before a Labour Court, Tribunal or National Tribunal shall be deemed to have commenced on the date of the reference of the dispute for arbitration or adjudication, as the case may be, and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under Section 17-A.”
Rule 3 of the rules provides for making an application under Sub-section (2) of Section 10 of the Act for a reference of an ‘industrial dispute’ and the manner thereof, as under:-
“3. Application – Under Sub-section (2) of Section 10 for the reference of an industrial dispute to a Board, Court, Labour Court, Tribunal or National Tribunal shall be made in Form A and shall be delivered personally, or forwarded by registered post to the Secretary to the Government of India, in the Ministry of Labour and Employment (in triplicate), the Chief” Labour Commissioner (Central), New Delhi, and the Regional Labour Commissioner (Central), and the Assistant Labour Commissioner (Central) concerned. The application shall be accompanied by a statement setting forth-
(a) the parties to the dispute;
(b) the specific matters in dispute;
(c) the total number of workmen employed in the undertaking affected;
(d) an estimate of the number of workmen affected or likely to be affected by the dispute; and
(e) the efforts made by the parties themselves to adjust the dispute.”
Rule 10 deals with the conciliation proceedings and procedure in non-public utility service and provides as under: –
” 10. Cone illation proceedings in non-public utility service.
Where the Conciliation Officer receives any information about an existing or apprehended industrial disputes which does not relate to public utility service and he considers it necessary to intervene in the dispute, he shall give formal intimation in writing to the parties concerned declaring his intention to commence conciliation proceedings with effect from such date as may be specified therein.”
After having made reference to some of the provisions of the Act and the Rules it is necessary to notice some of the judgments referred to by the learned counsel for the parties.
51. Sindhu Re-settlement Corporation v. Industrial Tribunal of Gujarat, (AIR) 1968 SC 529), is a case in which the demand which the workmen had made was for retrenchment compensation only and there was no demand for reinstatement. The reference, which ultimately was made by the appropriate Government, also included therein the question of re-instatement as an ‘industrial dispute’ for adjudication by the Tribunal. The Court found that in the claim put forward before the Management, the request was only for payment of retrenchment compensation and there was no dispute of reinstatement though there were some conciliation proceedings and subsequently on submission of failure report by the Conciliation Officer the State of Gujarat also referred the question of re- instatement of the workmen for adjudication by the Industrial Tribunal. The Court held that since no such dispute about the re-instatement was raised before the Management, the State Government was not competent to refer the question of re-instatement as an ‘industrial dispute’ for adjudication by the Tribunal. The following observations made by the Court in its report appearing at page 533 deserve to be quoted;
“…………Thus, both the respondents, in their claims put forward before the management of the appellant, requested for payment of retrenchment compensation and did not raise any dispute for reinstatement. Since no such dispute about reinstatement was raised by either of the respondents before the management of the appellant, it is clear that the State Government was not competent to refer a question of reinstatement as an industrial dispute for adjudication by the Tribunal. The dispute that the State Government could have referred competently was the dispute relating to payment of retrenchment compensation by the appellant to respondent No. 3 which had been refused. No doubt, the order of the State Government making the reference mentions that the Government had considered the report submitted by the Conciliation Officer under Sub-section (4) of Section 12 of the Industrial Disputes Act, in respect of the dispute between the appellant and workmen employed under it, over the demand mentioned in the Schedule appended to that order; and, in the Schedule, the Government mentioned that the dispute was that of reinstatement of respondent No. 3 in the service of the appellant and payment of his wages from February 21, 1958………,If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their employer. An industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer, cannot become an industrial dispute Consequently, the material before the Tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the tribunal, had ever existed between the appellant Corporation and the respondents and the State Government, in making a reference, obviously committed an error in basing its opinion on material which was not relevant to the formation of opinion,…….On these facts, it is clear that the reference made by the Government was not competent. The only reference that the Government could have made had to be related to payment of retrenchment compensation which was the only subject- matter of dispute between the appellant and the respondents……”
52. In Shambhu Nath Goyal v. Bank of Baroda 1978-I-LLJ-484, it was held that the Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not a sine qua non unless of course in the case of public utility service, because Section 22 of the Act forbids going on strike without giving a strike notice, but what would connote an industrial dispute, the court held (p. 486):
“…..the term ‘ industrial dispute’ connotes a real and substantial difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section.”
In the facts and circumstances of the case the Court found that there was a demand in fact made for re-instatement, which was found to have been made by the workmen upon the employer when the workman had made such a : request for being re-instated in his memorandum of appeal which he preferred against the order of dismissal from service questioning the decision of the Management. The following facts as found by the Court for demand having been made deserve to be quoted (p. 487):
” In this case the Tribunal completely misdirected itself when it observed that no demand was made by the workman claiming reinstatement after dismissal. When the inquiry was held, it is an admitted position, that the workmen appeared and claimed reinstatement. After his dismissal he preferred an appeal to the appellate forum and contended that the order of dismissal was wrong, unsupported by evidence and in any event he should be reinstated in service. If that was not a demand for reinstatement addressed to employer, what else would it convey? That appeal itself is a representation questioning the decision of the Management dismissing the workman from service and praying for reinstatement. There is a further fact that when the Union approached the Conciliation Officer the Management appeared and contested the claim for reinstatement. There is thus unimpeachable evidence that the concerned workman persistently demanded reinstatement….”
53. In Shambu Nath Goyal’s case (supra), learned Judges also made reference to Sindhu Resettlement Corporation’s case (supra) by observing that the question whether in case of apprehended dispute Government can make a reference made Sub-section (1) of Section 10 of the Act was not examined by the earlier decision. The learned Judges who constituted the Bench in Shambhu Nath Gael’s case (supra) had also an occasion to deal with the scope of Sub-section (1) of Section 10 in Avon Services v. Industrial Tribunal 1979-I-LU-l and after making reference to Sindhu Re-settlement Corporations’s case (supra) held in para 14 as follows (p.7):
“……. …..It is thus crystal clear that there was a demand about reinstatement complaining about the illegality of termination of service and the same has been referred to the Tribunal. Therefore, it is not possible to accept the contention that on this account the reference is incompetent. In this view of the matter it is not necessary to examine the contention raised on behalf of the respondents that the decision in Sindhu Resettlement Corporation Ltd. (supra) ignores or omits to take note of the expression ‘difference’ used in the definition of industrial dispute in Section 2(k) as also the power of the Government not only to refer a dispute which exists but one which is apprehended in the sense which is imminent or is likely to arise in near future and which, in order to arrest in advance threatened or likely disturbance to industrial peace and harmony and a threat to production has to be referred to the Industrial Tribunal for adjudication.”
54. A Division Bench of Delhi High Court in Fedders Lloyed Corporation Pvt. Ltd. v. Lt. Governor Delhi (AIR) 1970 Delhi 60, held that making of a demand by the workmen on the Employer was necessary in order to constitute as ‘industrial dispute’. Reliance was placed in Sindhu Resettlement Corporation’s case (supra) by observing as under:-
“……… .The Supreme Court has also clarified that even if the Conciliation Officer found that an industrial dispute existed and so reported to the Government, this could not be regarded as the existence of the industrial dispute which has to be founded upon a demand by the workmen on the employers. If this is the ratio of the Supreme Court decision, it cannot be said that an industrial dispute existed in the present case as no demand was made by respondent No. 3 on the petitioner company before he made an application under Section 10(2) for reference. In that event the fact that the demand of respondent No. 3 was forwarded by the Conciliation Officer to the petitioner-company and was not accepted by the latter would not constitute on industrial dispute.”
55. After referring to the two judgments of Supreme Court in Sindhu Re-settlement Corporation’s case and Shambhu Nath Goel’s case, a single Judge of the Delhi High Court, on the facts of the case in New Delhi Tailoring Maz-door Union v. S.C. Sharma and Co. (supra) held that a mere demand to the Government without a dispute being raised by the workmen with their employer cannot constitute an ‘industrial dispute’ since the demand was found to have been confined to lifting of a lock-out only and there was no demand as regards termination of the services of the workmen and reinstatement. Reference without such demand was held to be incompetent.
56. Learned counsel for respondent No. 4, by placing reliance upon the Management of Radio Foundation Engineering Ltd. and another v. State of ‘Bihar and Ors. (supra), contended that in all cases it was not necessary that dispute must be preceded by a demand on the employer and a refusal in express terms. Having gone through the decision cited, it can be noticed that the same is in line with the judgment of the Supreme Court in Sindhu Resettlement Corporation’s case (supra), on which reliance was placed in the said judgment and contrary view has not been taken therein. It was held by the Division Bench of the Patna High Court that the question of existence of a dispute or an apprehended one has got to be decided with reference to the facts of each case. On the facts of that case, demand was found to have been put forward before the Management to allow them to work and it was held that the management would not allow them to work. The resultant of the same was held to be an ‘industrial dispute’, as to the alleged lockout and in the facts it was held that no further demand in respect of that dispute was necessary. The Division Bench further held that;
“in all cases it is not necessary that the dispute must be preceded by a demand and a refusal in express terms by the parties concerned”.
More emphasis was laid in the decision as regards demand in express terms meaning thereby that if a demand could be implied from the facts and circumstances then no further demand was held necessary, which would be apparent from the observations made in the judgment to the following effect in para 16 of the report:
“…..If on the evidence adduced before the Tribunal it is found that the industrial dispute did not exist or was not apprehended, the reference may be held to be incompetent. But at this stage, to say that, merely because in express terms no such dispute was raised before the management by the workmen, there was in fact no dispute and hence the reference is incompetent, will not be correct. The question of the existence of a dispute or an apprehended one has got to he decided with reference to the facts of each case. If merely the workmen make a demand before the Government that they are entitled to get such and such wages or such and such amount of bonus, without making this demand before the management, it can be legitimately said, if I may say so with respect, as was said by a Bench of this Court in the case of the Members of the Sasamusa Workers Union (AIR) 1952 Pat. 210, that no dispute had actually cropped up because no demand was made before the management there was no refusal of the demand and hence there was no dispute.”
57. A Division Bench of the Orissa High Court in Orissa industries (P) Ltd. v. Presiding Officer, Industrial Tribunal and Ors. (supra) after referring to the judgment of the Supreme Court in Sindhu Resettlement Corporation’s case (supra) and two other judgments of Delhi High Court, as noticed above, and the Patna High Court, held that only if a dispute exists between the employer and the workmen, a reference can be made by the Slate Govt. under Sub- section (1) of Section 10 for adjudication of the dispute by the Tribunal. In the absence of such a dispute if the Government was still of the opinion that a dispute exists, the opinion so formed is without material and the exercise of powers by way of reference is without jurisdiction . Referring to the provisions in Section 12 of the Act, it held that Sub-section (4) of Section 12 merely speaks of the fact that if the conciliation fails, the Conciliation Officer shall make report thereof to the State Government. Under Sub- section (5) of Section 12, the State Government may make a reference on consideration of failure report, if it is satisfied that there was a case for reference.
Reference under Sub-section (5) of Section 12 would be without jurisdiction unless an ‘industrial dispute’ exists between the employer and the workman after he makes a demand before the management.
58. On the analysis of the aforementioned : decisions, it can be said that it is settled proposition of law that dispute could arise within the meaning of Section 2(k) of the Act only when there is a demand by the workman and denial of the same by the employer.
59. The point which needs further consideration is as to whether the demand should be made directly on the management and there should be a refusal by the management expressly preceding conciliation proceedings for a reference on : an ‘industrial dispute’. A single Judge of the Madras High Court in C. Manuel v. Management of Needle Industries (India) Ltd. 1981-11-LIJ-102 in which case there was a demand not directly made on the employer but through the : Conciliation Officer and a denial of the same by the management, held in paras 22 and 26 of the report as under (pp. 111,113):
“We can take it as settled that a dispute could arise within the meaning of Section 2(k) of the Act only when there is a demand by the workman and a denial of the same by the management. The definition of dispute under Section2(k) of the act takes in difference between the parties also. It is one thing to say that there must exist a dispute or a difference so as to clothe the appropriate Government with the jurisdiction to refer the matter for adjudication under Section10 of the Act and it is another thing to say as to how the dispute or difference must have arisen and existed or apprehended at the relevant point of time. Neither the statute law nor any of the judicial pronouncements referred to above, lay down that a demand could not be made through the conciliation officer and a denial of the same could not be expressed before the conciliation officer……….,…The principles recognised by courts including the highest in the land have not laid down any particular manner by which an industrial dispute or difference should be raised. The real question is whether if at the time of exercise of powers under Section 10 of the Act there exists or is apprehended an industrial dispute or difference, then it will be competent for appropriate Government to exercise its powers under Section 10. Once that power has been exercised, it will be futile to go behind to some point of time anterior to the relevant point of time and explore as to whether a demand was raised in a particular manner by the workman on the management and whether such a demand was refused by the management. The parties having come to grips and the situation having not been eased out by any conciliation, the dispute or the difference must be deemed to have existed or apprehended at the point of time when the appropriate Government exercises its powers under Section10 of the Act. That is the crucial point of time…..”
60. Referring to the aforementioned judgments of the Supreme Court and other High Courts, including the one in C. Manuel’s case supra) , a Division Bench Madras High Court in Ramakrishna Mills Coimbatore Ltd. v. The Government of Tamil Nadu and Ors. (supra), held that there cannot be a doubt that for the existence of an industrial dispute, there ought to be a demand by the workmen and a refusal to grant it by the management. How the demand should be raised, the Division Bench further held that there should not and could not be a egal notion of fixity and rigidity. The grievance of the workmen and the demand for its redressed must be communicated to the management. The means and mechanism of communication adopted are not matters of much significance, so long as the demand is that of the workmen and it reaches the management.
61. As has been noticed above, the Supreme Court in Shatnbhu Nath Gael’s case (supra), considered the demand by the workman made in his grounds of appeal to be a demand on the employer from which it could be concluded that a written demand directly on the management is not in all cases a sine qua non.
62. The judgment in the case of C. Man-uets’s case (supra) was taken up by the management in appeal before a Division Bench of the Madras High Court. While dismissing the appeal, the Bench, in the Management of Needle Industries v. The Presiding Officer, Labour Court 1986-I-LU-405, negatived the contention of the management that unless there was a demand by the workman or by the Union on his behalf made directly on the management and unless such a demand was not complied with by the management, there would not come into existence an ‘ industrial dispute’, as per the combined reading of Section 2(k) and Sub-section (1) of Section 12 of the Act and held that (p 407):
“………….according to the plain meaning of the definition of ‘industrial dispute/ the dispute or difference arose between the management and the workmen by virtue of the management dismissing the workman from service. According to Section12 of the Act, the matter can be referred to conciliation where any dispute existed or was apprehended. In this case, the dismissal per se created a dispute or difference between the management and the workman and in such a case, if the matter is referred to conciliation on behalf of the workman by the Union, the provision enables the conciliation officer to exercise his jurisdiction as contemplated under the said provision. It is nowhere stipulated in the Act particularly in Section 2(k) and the existence of the dispute as such is not enough, but then there should be a demand by the workman on the management to give rise to an industrial dispute.”
63. As noticed above, the demand in the aforementioned case of Management of Needle Industries was found to have been made by the workmen concerned through their union not directly upon the employer but in the application to the Labour Officer complaining that the management refused to accept the workmen without assigning proper reasons and proper inquiry and demanded reinstatement with back wages and continuity of service. Conciliation failed and the Officer submitted failure report to the Government. On the basis of the report reference was made. Such a demand made by the workmen through their Union in the application to the Conciliation Officer and conveyed to the management was held to be sufficient enough.
64. Thus, on the basis of the various decisions referred to above, it can safely be said that in order to constitute an ‘industrial dispute’ there ought to be a demand made expressly or impliedly by the workman or the Union on his behalf and a refusal on the part of the management. The grievance of the workman and the demand for its redressal need not be made directly upon the management but must be communicated to the management. The means and mechanism of communication adopted are not matters of much significance so long as the demand is that of the workman and it reaches the management. Each case has to be decided on its own facts and circumstances.
65. Turning now to the facts of the instant case as noticed above. Notice of demand, which was served on behalf of the workmen union was with respect to certain demands concerning service conditions on December 20, 1985. Conciliation proceedings were in progress as regards those demands. During the progress of the conciliation proceedings six workers were suspended on June 20, 1986 and thirty-two thereafter struck work by absenting themselves from duty. The employer on July 2, 1986 and July 21, 1986 served two separate notices upon the absentee workmen. On July 23, 1986 Conciliation Officer sent a failure report Ex. R/2 to the Government, but neither the Union nor the employer was intimated about the same. It was on July 31, 1986 that notice Annexure P-3 was served by the employer upon the workmen intimating that having failed to report for duty they were no more in the employment of the factory with effect from August 1, 1986. However, being old employees, the employer informed them that if they wished to join duly they would be given fresh appointments.
On receipt of a telegram, Annexure R/4 on August 12, 1986 from the Labour Commissioner, Himachal Pradesh to the effect that Labour trouble was stiil continuing in the factory, the Conciliation Officer on August 22, 1986 sent notice Annexure R/5 to the employer as well as to the union to attend his office on September 2, 1986 in order to settle the dispute. As noticed above, a representative of the employer attended the office of the Conciliation Officer on that date but none was present on behalf of the Union and in the absence of the representative of the union, no proceedings could take place. On October 27, 1986 notice Annexure R5/A was again sent by the Labour Officer, South Zone, Solan (Conciliation Officer) informing the employer and the Union about the date of the next conciliation meeting as November 6, 1986. On the said date, admittedly, no one appeared on behalf of the employer before the Conciliation Officer. On that date, the Union, for the first lime, before the Conciliation Officer, put up its demands, Annexure R/6, one of which was to the following effect:
“All the 30 workers who have been terminated by the management may be reinstated from the date of their termination i.e. August 1, 1986 with back wages. The representative of the workers stated that the above two issues may be referred to the Labour Court because the management is not interested to attend the conciliation and to discuss the above dispute with the workers.”
On the same day, the Conciliation Officer recorded his proceedings Annexure R/7 and noticed therein as under:
“………The next conciliation meeting was fixed on dated November 6, 1986 at Una and this meeting was attended by the representative of the workers, but none from the management side attended the said meeting. In that meeting the representative of the workers were heard.
The representative of the workers stated that the union has submitted the demand notice to the management in the month of December 1986 but the management did not accept the demands…….six workers were suspended, who are all office bearers of the Union. In support of these suspended workers, other 30 workers went on strike on dated June 30, 1986 and the management have terminated all the 30 workers on August 1, 1986. Now the representative of the union demanded the reinstatement of all these 30 workers…..”
The Conciliation Officer noticed that mere non-participation by the employer in the conciliation meeting as regards the demand of the union about some service conditions itself was sufficient to conclude that the management was not interested to reinstate the workers. It is this failure report which was sent on November 19, 1986 to the Labour Commissioner who on January 19, 1987 endorsed the recommendations of the Conciliation Officer and prayed to the State Government to make a reference; that is why the reference was made under Sub-section (5) of Section 12 of the Act.
66. From the aforementioned facts, it is clear that according to the union termination took place on August 1, 1986. However,it is contended on behalf of the employer that there is no termination as such but it was a case of abandonment of work by the workmen. For the first time, the union on behalf of the workmen, on November 6, 1986 made a demand for reinstatement, which was communicated to the Conciliation Officer. Neither the Conciliation Officer, nor the union thereafter by any means communicated the same to the employer. There is nothing on record to suggest that the employer had any means of knowing about the demand having been raised by the union on behalf of the workmen before the Conciliation Officer, nor is there anything on record to suggest that the employer was in the know that such a demand was likely to be raised. Since the demand made by the union on behalf of the workmen was neither made directly upon the employer either expressly or impliedly, nor was the same (which was made before the Conciliation Officer) communicated either by the Conciliation Officer or by any other mode to the employer, there was no question of refusal on the part of the employer. As such, in view of the aforementioned pronouncements, there is no hesitation in holding that the Government had no jurisdiction to make a reference.
67. Since the reference made by the Government is without there being any demand, there is also no hesitation in holding that the so-called dispute referred does not reflect the real dispute. It would not have been permissible for the Labour Court to have travelled beyond the reference and decide the question whether the workmen had abandoned the work. The reference proceeded on the assumption that there was termination, as such, as contended by the workmen. Since the reference was made without any demand having been made by the union either expressly or impliedly upon the employer there was no occasion for the employer to point out about the nature of the alleged dispute so as to enable the Government to make a proper reference on the alleged dispute. No conciliation proceedings followed after the union put up its demands on November 6, 1986. The Conciliation Officer presumed that since the employer was not present, it was not ready to reinstate the workmen. Accordingly, a failure report was sent on which reference was made.
68. A Full Bench of the Delhi High Court in India Tourism Development Corporation, New Delhi v. Delhi Administration, Delhi and Ors. (1982 LIC 1309), while construing the provisions of Section 10 (4) of the Act held that the jurisdiction of the Labour Court/Industrial Tribunal is limited to the points referred and it cannot go into those questions not referred to it, which otherwise are required to be adjudicated upon on a reference under the Act. The Court held that:
“……..the jurisdiction of the Labour Court Industrial Tribunal in industrial dispute is limited to the points specifically referred for its adjudication and the matters incidental thereto and it is not permissible logo beyond the terms of the reference……It exercises such jurisdiction and powers only upon and under order of reference limited to its terms. It cannot travel beyond the terms of reference except for ancillary matters. Making of an order of reference is undoubtedly an administrative function, but even that is amenable to judicial review in the proceedings under Article226 under certain facts and circumstances. An order of reference is open to judicial review if it is shown that the appropriate Government has not applied its mind to the material before it or has not taken into consideration certain vital facts which it ought to have taken into consideration…..We are of the view that the existence of lock-out itself being the real dispute between the management and its workmen, the terms of reference proceeds on the assumption that there was lock-out with effect from January 1, 1981. There is a very thin line of distinction between closure and a lock-out….The real dispute between the parties was whether there was at all a lock-out or whether there was violence by the workmen and for that reason there was suspension of the working of the restaurant with effect from January 2, 1981 and whether the closure of the restaurant from February 18, 1981 was proper and for that reason the termination of the services of the workmen was justified and legal. The appropriate Government has failed to take into consideration the entire set of circumstances brought out by the management in the two notices displayed and the replies furnished to the Delhi Administration to come to the conclusion whether it was a lock-out or closure. Whether in fact there was a closure or lockout is the real dispute which can more appropriately be determined in industrial adjudication…..The .Industrial Tribunal cannot go into that question as the real dispute has not been made the subject matter of the order of reference.”
69. The aforementioned observations of the Full Bench of the Delhi High Court were followed by a Division Bench of the Bombay High Court in Sitaram Vishnu Shirodkar v. The Administrator Government of Goa and Ors. 1985-1-LLJ-480. In view of the provisions of law, there is no hesitation in following the views expressed by the Full Bench of the Delhi High Court in the aforementioned case.
70. As a result of the above discussion, the writ petition is allowed. The impugned notification Annexure P-4 is quashed and sel aside. The parties arc, however, left to bear their respective costs.
71. Be it staled that the quashing of the impugned notification will not be a bar for a fresh reference being made in accordance with law.