WESTERN INDIA MATCH CO. LTD v. WESTERN INDIA MATCH CO. WORKERS UNION & Ors.

Appeal by special leave from the judgment and order dated March 12, 1968 of the Allahabad High Court in Special Appeal C No. 301 of 1966. C. K. Daphtary, R. N. Banerje11, P. N. Tiwari and 0. C. Mathur, for the appellant. S. C. Agarwala, R. K. Garg and S. Chakravarty, for respon dents Nos. l and 3. The Judgment of the Court was delivered by Shelat, J. On May 9, 1956 the appellant-company appointed respondent 3 as a foreman on probation for a period of six months. On expiry of that period the probationary period was extended from time to time and ultimately respondent 3 was transferred to the labour office of the company. On May 29, 1957, while res pondent 3 was still serving his probationary period, the company terminated his service. The matter was thereupon taken up by respondent l before the Regional Conciliation Officer, Bareil!y, reasons who registered the case as Case No. 83B/57. For hereinafter stated, no conciliation could be arrived at and State Government declined to make a reference for adjudication under the U.P. Industrial Disputes Act, 1947 (hereinafter called the Act). On the said refusal, respondent 3 filed a writ petition in the High Court for a mandamus, The High Court dismissed the petition on the ground that the decision of the State Government to refer or not to refer a dispute for adjudication was a matter of the respondent-union its discretion. By about the end of 1962 made further representation to the State Government and by order dated August 28, 1963 the Government made a reference of the dispute re2arding the said termination of the service of respon dent 3 to the Labour Court for adjudication. By its order dated March 22, 1965 the Labour Court rejected the reference on ground that there was no industrial dispute, and therefore, reference was not maintainable. Respondents l to 3 thereupon filed a writ petition in the High Court which was allowed by a learned Single Judge. An appeal against the said. order filed by D E F G H W!MCO v. WORKERS UNION (She/at, J.) 373 the appellant-company was dismissed. This appeal, by special leave, JS directed agamst the order of the High Coun dismissing the appellant-company's writ petition. Counsel for .the appellant-company, in suppon of the appeal, ( 1) Was it possible for the respon raised the following points : dent-umon to validly espouse the cause of respondent 3 when he was not a member at the date when his service was terminated '! Even if it was, was _there in fact an espousal so as to conven hii individual dispute into an industrial dispute '? ( 2) Do the words "at any time" in s. 4(k) of the Act have any limitations, or can the Govermnent refer a disput.~ for adjudication·after the lapse of about six years, as in this case, after the accrual of the cause of the dispute '? ( 3) In what circumstances can the Government refer such a dispute for adjudication after it has once refused to do so? The definition of 'industrial dispute' in s. 2(1) of the Act is in the same language as that ins. 2(k) of the Industrial Disputes Act, 1947. The expression 'industrial dispute', therefore, must bear the same meaning as it is assigned to that expression in It is now well-settled by a long series of decisions Central Act. that notwithstanding the wide language of the definition ins. 2(k) of the Central Act, the dispute contemplated there is not an indi vidual dispute but one involving a substantial number of ' work men. However, a dispute, though originally an individual dispute, may become an industrial dispute if it were to be espoused and made a common cause by workmen as a body or by a consider able section of them. Section 4(k) of the Act, there.fore, must be held to empower the Government to make a reference of such a It provides that where the State dispute only for adjudication. Government is of opinion that any industrial dispute exists or is apprehended, it may, at any time, by order in writing, dispute for adjudication to a labour coun or to a tribunal depend ing upon whether the matter of the industrial dispute falls under one or the other Schedule to the Act. The first question that falls for determination is whether where a dispute is originally an individual dispute but becomes an indus trial one as a result of its being espoused. by a union or a substan tial number of workmen, the concerned workman should have been a member of such union at the time when the cause of such It appears that at one time there was a conflict of dispute arises. judicial opinion on this question. Some of the High Couns took the view that in order that an individual dispute may be converted into an industrial dispute on, as aforesaid, its being espoused by a substantial number of workmen, the concerned workman must be a member of the union at the time of the accrual of the cause of the dispute. Thus, in Padarthy Ratnam & Co. v. Industrial 8 c D E F G H L7Su~. CI/{NP)7'-? 374 SUPREME COURT REPORTS [1970] 3 S.C.R. Tribuna/(1) the High Court of Andhra Pradesh held that a dispute simpliciter between an employer and a workman might develop into an industrial dispute if the cause is espoused by a . union of which. he is a member, and that the membership of the union which would give it the jurisdiction to espouse his cause must be anterior to the date of the dismissal and not subsequent to it. A similar view was also taken by the High Courts of Kerala and (see Shamsuddin v. State of Kerala(2) and Khadi Gram Punjab. odyog Bhawan Workers' Union v. E. Krishnamurthy, Industrial In a later decision, however, the High Court of Tribunal('). Punjab appears to have taken a contrary view. In Muller & Phipps (]ndia) (P) Ltd. v. Their Employees' Union(') the dispute lated to the retrenchment of a workman and the failure of employer to re-employ him in spite of its having re-employed two other employees out of their turn as against the turn of the con cerned workman. The High Court rejected the employer's con tention that the espousal of the union was not valid as it was made after the retrenched workman had ceased on his being retrenched to be a member of the union on the ground that if that contention were to be upheld it would mean that no union can ever espouse In Workmen v. Jamadoba the cause of a retrenched workman. Colliery of Tata lron and Steel Co. Ltd.('), the union which es poused the cause of the workman came into existence after his dismissal. The workman naturally became its member after his dismissal. The Hi;;h Court disagreed with the Tribunal, which had rejected the reference, and held that even if, on the date of the dismissal of a workman, the dispute was an individual dispute, it may under some circumstances become an industrial dispute on the date of the reference and that the validity of the reference has to be judged on the facts as they stand on the date of the reference and not at the date of the dismissal. Therefore, even if there was no union at the date of the workman's dismissal to espouse his cause, if such a union comes into existence before the reference and the dismissed workman becomes its member and the union thereupon espouses his cause that would be sufficient. It also held that there was no principle in support of the view that the union must be in eixstence at the time of the dismissal. After the decision by this Court in Workmen v. Management o; Dimakuchi Tea Estate(') there can be no doubt that though the words "anv person" in the definition of an industrial dispute in s. 2 ( k) of the Central Act are very wide and would on a mere lite ral interpretation include a disoute relating to any person, con sidering the scheme and the objects of the Act all disputes are not industrial disputef·and tl; iat a dispute becomes an industrial dis- 11' 119581 2 L.L.J. 290. L~l A.LR. 1966 Pun. 173. (5) [1%7] 2 L.L.J. 66). (2) [1961) I L.L.J. 77. (4) [1967] 2 L.L.J. 222. (6) [1958] S.C.R. 1156_ A B c ·D E F G H WIMCO v. WORKERS UNION (Shelat, J.) 375 A B c D E F G H pute where the person in respect of whom it is raised is one whose employment, non-employment, terms of employment or conditions of labour the parti.es to the dispute have a direct or substantial interest. The question, therefore, which would arise in cases where the existence of the industrial dispute is challenged, is whether there was between the parties to the reference, i.e., the employer and his workmen, an industrial dispute. The parties to the industrial dispute are obviously the parties to the reference, and therefore, the dispute must be an industrial dispute between such parties. It follows, therefore, that though a dispute may initially be an individual dispute, the workmen may make that dispute as their own, that is to say, espouse it on the ground that they have a community of interest and are directly and substantially rested in the employment, non-employment, or conditions of work of the concerned workman. This premise pre~supposes that though at the date when the cause of the dispute arises that dis pute is an individual dispute, such a dispute can become an indus trial dispute if it is epoused by the workmen or a substantial sec tion of them after the cause of the dispute, e.g., dismissal, has It may be that at the date of such dismissal there is taken place. no union or that the workmen are not sufficiently organised to take up the cause of the concerned workman and no espousal for that or any other reason takes place at the time when such cause occurs. But that cannot mean that because there was no such union in existence on that date, the dispute cannot become an industrial one if it is taken up later on by the union or by a substantial section of If it is insisted that the concemed workman must the workmen. be a member of the union at the date of his dismissal, the result would be that if at that period of time there is no union in particular industry and it comes into existence later on then the dismissal of such a workman can never be an industrial dispute al thou)Zh the. other workmen have a community of interest in matter of his dismissal. and the cause for which or the manner in which his dismissal is brought about directly and substantially affects the other workmen. The only condition for an individual dispute turning into an industrial dispute, as laid down in the case o,f Dimakuchi Tea Estate( 1 ), is the necessity of a community of interest and not whether the concerned workman was or was not a member of the union at the time of his dismissal. The parties to the reference being the employer and his employees, the must necessarily be whether the dispute referred to adjudication is one in which the workmen or a substantial section of them have a direct and substantial interest even though such a dispute relates It must follow that the existence of such to a single workman. nn interest. evidenced by the espousal by' them of the cause, must be at the date when the reference is made and not necessarily at 1he date when the cause occurs, otherwise. as aforesaid, in some Ill [1958! S.C'.R. 1156. 376 SUPREME COURT REPORTS (1970] 3 s.c.R. casei a dispute which was originally an individual one cannot be- A come an industrial dispute. Further, the commuruty of. interest does not depend on whether the concerned workman was a mem- ber or not 'at the date when the cause occurred,. for, without his being a member the dispute may be such that other workmen by having a common interest therein would be justified in taking up the dispute as their own ·and espousing it. B Any controversy on the questiQ!l as to whether it is necessary for a concerned workman to be a member of the union which has espoused his cause at the time when that cause arose has been finally set at rest by the decision in Bombay Union of Journalists v. The "Hindu", Bombay(') where this Court laid down that the test whether an individual dispute got converted into an industrial dispute depended on whether at the date of the reference the dis pute was taken up and supported by the union of workmen of the individual employer against whom the dispute was raised by an workman or by an appreciable number of such workmen. (see also Workmen v. Mis Dharampal Premchand(') and .Workmen of Indian Express (P) Ltd. v. The Management('). The argument, therefore, that the reference in this case was not competent on the ground that the concerned workman was not a member of the union at the date when the cause giving rise to the dispute arose. and that therefore, the union could not have espoused the dispute to convert it into an industrial dispute is not correct and cannot be upheld. The next question is whether the expression "at any time" in s. 4(k) means what its literal meaning connotes, or whether in the context in which it is used it has any limitations. Counsel for the company argued that the concerned workman was admittedly not a member of the respondent-union in the beginning of 1959 when the State Government refused to make the reference, that he be came a member of the respondent-union in July 1962, that it was thereafter that the respondent-union revived the said dispute which had ceased to be alive after the Government's said refusal and that it was at the instance of the Union that the Government later on changed its mind and in August 1963 agreed to make the refe rence. The contention was that the Government, having once declined to refer the dispute, could not change its mind after a lapse of nearly six years after the dispute arose and that expression "at any time" does not apparently signify any limit, it must be construed to mean that once the Government had refused to make the reference after considering the maiter and the em ployer thereupon had been led to believe that the dispute was not to be agitated in a tribunal and had consequently made his own arrangement. the Government cannot, on a further. agitation by the though (1) [1962]3 S.C.R. 893, (2) [1965] 3 S.C.R. 3941 (3) 1%9• t S.C. Cases 228. c D E F G H .. A B c 0 F G H WIMCO v. WORKERS UNION (She/at, J.) < 377 union, take a somersault and decide to refer it for adjudication. It was argued that if it were so, it would mean that a workman, who after termination of his service, has already obtained another_ em ployment,, can still go to the union, become its member and ask the union to agitate the dispute by espousing it. Such an action, if permitted, would cause dislocation in the industry as when the employer has in the meantime made his own arrangement by appointing a substitute in place of the dismissed workman on find found other employment. The ing that the latter had already legislature, the argument proceeded, could not, therefore, have used the words "at any time" to mean after any length of time. From the words used in s. 4(k) of the Act there can be no doubt that the legislature has left the question of making or refus ing to make a reference for adjudication to the discretion of the Government. But the discretion is neither unfettered nor arbitrary for the section clearly provides that there must exist an industrial dispute as defined by the Act or such a dispute must be appre hended when the Government decides to refer it for adjudication. No reference thus can be made unless at the time when the Gov ernment decides to make it an industrial dispute between the em ployer and his employees either exists or is apprehended. There fore, the expression "at any time". though seemingly without any limits, is governed by the context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. But the Government need not wait un til such a procedure has been completed. In an urgent case, it can "at any time", i.e., even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. The expression "at any time" thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression "at any time" in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is contemplated by the section when the dispute is not an industrial dispute, or even if it is so, it no longer exists or is not apprehended, for instance, where it is already adjudicated or in respect of which there is an agreement or a settlement between the parties or where the dustry in question is no longer in existence. In the State of Madras v. C. P. Sarathy( 1 ) this Court held on construction of s. 10(1) of the Central Act that the function of the appropriate Goveinment thereunder is an administrative func tion. It was so held presumably because the Government cannot go into the merits of the dispu(e, its function being only to refer such a dispute for adjudication so that the industrial relations bet- (1) [J9S3J S.C.R. 334, at 346, 378 SUPREME COURT REPORTS [1970] 3 S.C.R. ween the employer and his employees may not continue to remain dislurbed and the dispute may be resolved through a judicial pro cess as speedily as possible. In the light of the nature of the func- tion of the Government and the object for which the power is con ferred on it, it would be difficult to hold that once the Government has refused to refer, it cannot change its mind on a reconsideration of the lllatter either because new facts have come to light or be cause it had misunderstood the existing facts or for any other rele vant consideration and decide to make the reference. But where it reconsiders its earlier decision it can make ihe reference only if the qispute is an industrial one and either exists at that stage or is apprehended and the reference it makes must be with regard t0 that and no other industrial dispute. (Cf. Sindhu Resettlement Corporation, Ltd. v. Industrial Tribunal('). Such a view has been taken by the High Courts of Andhra Pradesh, Madras, Allahabad. Rajasthan, Punjab and' Madhya Pradesh. (see Gurumurthi (G.l v. Ramulu (K.) (') Vasudeva Rao v. State of Mysore(") Raw.1/ pindi Victory Transport Co. (P) Ltd. v. State of Punjab(' J. Champion Cycle Industries v. State of U.P.('), Goodyear (India) Ltd., Jaipur v. Industrial Tribunal (6 ) and Rewa Coal Fields Ltd. v. Industrial Tribunal, Jabalpur( 1 ). The reason given in these decisions is that th.~ fUnction of the Government either under s. l 0(1) of the Central Act or a similar provision in a State Act be in~nistrative, principles such as res judicata applicable to judicial Acts do not apply and such a principle cannot be import- ed for consideration when the Government first and.later changes its mind. In fact, when the Government refuses to make a reforence it does not exercise its power; on the other hand it refuses to exercise its power and it is only when it. decide; to refer that it exercises its power. Consequently, the power refer cannot be said to have been exhausted when it has declined to make a reference at an earlier stage. There is thus a consider able body of judicial opinion according to which so long as an industrial dispute exists or is apprehended and the Government is of the opinion that is so, the fact that it had earlier refused to exercise its power does not preclude it from exercising it at a later s~e. · Jn this view, the mere fact that there has been a lapse of tilJie· or that a party to the dispute was, by the earlier refusal, Jed to~believe that there would be no reference and acts upon such belief, does not affect the jurisdiction of the Government to make the reference. refuses to It appears that there was a controversy before the High Court whether there was at all any espousal of the dispute by the respon- (ll 11968] 1 L,L.J. 834. 819. (3) [1963! 2 L.L.J. 111. (5) rt964] I L.L.J. 724. (2) [1958i 1 L.L.J. 20. t4) [1964] 1 L.L.J. 644. (6) [1968] 2 L.L.J. 682. (7) A.LR. [1969] M.P. 174. A B c D E F G H A B c D E F G H WIMCO \', WORKERS UNION (She/at, !. ) 3 7 9 dent-union, and if there was, at what stage. The High Court, therefore, got produced before it the record before the conciliation officer. Strictly speaking, in a proceeding for certiorari under Art. 226, the record which would be produced before the High Court would be that of the Tribunal whose order is under chal lenge. But if the High Court got produced in the interests of jus tice the file of the conciliation officer which alone could show whether there was espousal by the union or not, no one could reasonably object to the High Court calling for that record for the purpose of ascertaining whether the stand of the union that it had taken up the cause of respondent 3 was correct or not. As the High Court.has said, that file showed that on July 2, 1957 one Har Sahai Singh, the then President of the union, had complained to the Regional Conciliation Officer against the termi nation of service of respondent 3 and following that complaint, respondent 3 had filed a written statement dated September 4, 1957 which was counter-signed by the said Har Sahai Singh in his capacity as the President and presumably, therefore, on behalf of i.e .. the union. The record also indicated that on that very day, September 4, 1957. the Conciliation Officer recorded an order that the conciliation proceedings could not be proceeded with as "no authorised agent" of the union appeared before him. Presumably. the Conciliation Officer in course of time must have made his failure report. From these facts the following conclusions must em.~rge : ( I) that the Conciliation Officer bad taken cognisance of the dispute, (2) that he took that dispute as h11ving been espoused by the union through its president. ( 3) that thereupon he fixed September 4, 1957 as the date for holding the conciliation proceed in.gs and informed the parties to attend before him, and ( 4) that as "no authorised agent" on behalf of the union appeared before him. he recorded that th.~ conciliation proceedings could not go on. These facts clearly go to show that the then president of the union had not made the said complaint in his personal capacity but as the pre~ident representing the union. This is borne out to a certain extent by a subsequent resolution of the executive body of the union dated February 28, J 963 which recites that the execu tive committ.~e of the union will continue to take up the cause of respondent 3 as it had been so far doing. But Mr. Daphtary emphasised that even this resolution didmot mean that the union had taken up the cause of respondent 3 as its own since the resolu tion uses the word 'pairavi' and not espousinj! or· sponsoring workman's cause. Pairavi, according to him, means acting as the agent of a party to a proceeding and not beinir a party to the pro ceeding which would be the position had the union taken up th~ complaint as its own. Tn ·our view we need not look at the said resolution in so narrow a manner, for, the facts taken as a whole indicate that the union had in fact taken up the cause of the work man. The President evidently could not have countersigned the 380 SUPREME COURT REPORTS [ 1970] 3 S.c.Il. written statement of the concerned workman and the Conciliation Officer could not have given a notice to the union to appear be fore him and could not have recorded that he did not proceed with the conciliation proceedings as no authorised agent of the union appeared before him unless every one understood that the union had taken up the cause of the workman. The notice dated August 2,) 957 issued by the Conciliation Officer after the union Presicblt ., had lodged his said complaint is on record and shows that it was issued to the management and the union calling upon both of them to appoint their respective representatives on the conciliation board It as required by the Government Otder dated July ·14, 1954. also shows that the Officer treated the dispute as having been es poused by th.e union as the notice recites the dispute as an indus trial dispute. It may be that the The subse°quent factS Would seem to indicate that the Govern ment declined to make. the reference presumably because of the report of the Conciliation Officer that in spite of the said notice no authorised agent of the union had appeared before him and there fore no conciliation had been possible. As alrea"dy stated, a writ petition to compel the Government to make the reference proved respondent-union may have unsuccessful. decided to press for the reference after the concerned workman be came its member. That fact, however, is irrelevant for the pur poses of the jurisdiction of the Government under s. 4(k). One fact, however, is clear that the respondent-union carried on corres pondence with the Labour Ministry and also passed the said reso lution dated February 28. 1963. The correspondence which was carried on from about November 1962 shows that the union press ed the Government to make the reference and the Government ul timately made the reference in August 1963. That correspon dence further shows that the Governmrnt at one stage pointed out that the union had in 1957 failed to appear before the Conciliation Officer although it had espoused the dispute and that that fact had influenced the Government's refusal then to refer the dispute for :1djudication. The. union pointed out (I) that at the time when the said complaint was lodged in 1957 before the Conciliation Otlic.er the union's president was one Varnrn. (2) that in meantime elections for the union's office bearers took place when the said Har Sahai Choudhurv and one Girish Chandra Rharati were elected president and working-president respectively. (3) that the above-mentioned individuals appeared before the conciliation officer. but the said Varma did not, as he bad failed in the elec tions. ( 4) that dispute arose about the said elections and Registrar of the Trade Unions refused to recognise the new office bearers. and (5) that the conciliation officer also refused to recllg nise the said Har Sahai Choudhurv and Bharati a< the dulv electe(I president and working president. and therefore. although both of B c D E ' G H WIMCO V. WORKERS UNION (She/at, J.) 381 them attended the meeting fixed by !hat officer, the latter recorded that no authorised agent of !he union had appeared before him and no conciliation, therefore, could be arrived at. It thus appears from the correspondence that following the espousal of the said dispute by the union, two of !he office bearers of the union did appear before !he conciliation officer but were not recognised a~ the authorised agents of !he union on account of !he said disputes If the Government, lherefore, had refused about the elections. then· to make the reference on !he ground that though the union . had espoused the workman's cause it had. not cared to appear at the conciliation proceedings, the Government's decision refusing to make the reference was clearly on misapprehension .. If Government subsequently found !hat its earlier decision was·based' on such a misapprehension and on facts brought to its 11Qtiee it .. reconsiders the matter and decides to make !he is·. · difficult to say !hat it exercised the discretion conferred on it by . : s. 4(k) in any inappropriate manner. But that does not mean"that'' if s. 4{k) is construed to mean that the Government can recbnl '."' sider its earlier decision, such a construction would result in unions' "· indecing workmen to join them as members or to shift their mem bership from one to the other rival union on promises by such union to revive disputes which are already dead or forgotten and then press the Government to make a reference in relation to them. There is no reason to think thai the Government would not con sider !he matter properly or allow itself to be stampeded int(l mak- irt11: references in cases of old or stale disputes or reviving such dis putes on the pressure of unions . reference it. B c D E . It is true that where a Government reconsiders its previous decision and decides to make !he reference, such a decision might cause inconvenience to the employer because the employer in the meantime might have acted on the belief that there would be no . proceedings by way of adjudication of the dispute between him and his workmen. Such a consideration would, we should think. be taken into account by the Government whenever, in exercise of its discretion. it decides to reopen its previous decision as also the time which has lapsed between its earlier decision and the date when it decides to reconsider it. These are matters which take into account while decidin!! Government would have to whether it should reopen its former decision in the interest of justice and industrial peace but have nothing to do with its juris· diction under s. 4(k) of the Act.- Whether the intervening period mav be short or Ion!! would necessarily depend upon the facts and circumstances of each case, and therefore. in construing the ex nression "at anv time" in s. 4(k) it would be impossible down anv limits to it. F G H In the oresent case thou!!h nearlv four vears had gone by since the earlier decision not to make !he reference, if the Government 382 SUPREME COURT REPORTS (1970] 3 .Ji.C.R. was satisfied that its earlier decision had been arrived at on a mis apprehension of facts, and therefore, required its reconsideration, neither its decision to do so nor its determination to make the refe rence 'can be challenged on the ground of want of power. The fact that the dispute betweeoi the concerned workman and management had become an industrial dispute by its having been espoused by ·the union since 1957 cannot be disputed. The fact that the workman was then not a member of the union does not preclude or· negative the existence of the community of interest nor can it disable the other workmen through their union from makin£ that dispute their own. The fact that the Government refused then to exercise its power cannot mean that the dispuie had ended or In the absence of any mat.erial it is was in any manner resolved. not possible to say that. with the refusal of the Government then and the dismissal of the writ petition by the High Court in March 1959 the dispute, which was already an industrial \!!spute, h"d ceased to subsist or that on respondent 3 joining the union in July I 962 the union revived a dispute which was already dead and not in existence. His becoming a member in July 1962 was as material to the power of the Government under s. 4 ( k) as the fact of his not being a member at the time when his cause was espoused in 1957 by the union and the dispute becoming thereupon an in dustrial dispute. The question of his 111embership. therefore, !us to be kept apart from the right of the other workmen to espouse his cause and the power of the Government under s. 4(k). It may be that his becoming a member in 196 ~ may have been cause of the union's subsequent efforts to per; uade the Govem- reference on proper 111ent to reconsider its decision and make a facts being plaCed before it and its earlier misapprehensions moved. But that again has nothinl! to do with the jurisdiction of the Government under s. 4(k) of the Act. A B c D E In our view, the appellant-company fails on botfl the points and its appeal against the High Court's decision becomes unsustainable . Accordingly. we dismiss the appeal with costs. . F V.P.S. Appeal dismissed.