The Management of Sri Sakthi Textiles Ltd.,Pollachi – 642 001 v. The Presiding Officer, Industrial Tribunal, Madras – 104 & Ors.

In the High Court of Judicature at MadrasDated: 16.04.2008CoramThe Honourable Mr.JUSTICE K.CHANDRUWrit Petition Nos.10850 of 1997 and 1430 of 1999The Management of Sri Sakthi Textiles Ltd.,Pollachi – 642 001..... Petitioner in W.P.No.10850/97 & R2 in W.P.No.1430/1999The SecretaryJeeva Panchalai Thozhillar Sangam62, Karikali Ammal Koil Street,Pollachi – 642 001..... Petitioner in W.P.No.1430/99Vs.1. The Presiding Officer, Industrial Tribunal, Madras – 104..... Respondent in both W.Ps.2. The Secretary, Jeeva Panchalai Thozhilalar Sangam No.40, Father Randi Street, R.S.Puram, Coimbatore.3. The Secretary, Kovai Jilla Mill Thozhilalar Sangam (AITUC) Katoor, Coimbatore – 641 009.4. The Secretary, Desia Panchalai Employees Union (INTUC) 621, Trichy Road, Ramanathapuram, Coimbatore.5. The Secretary, Kovai Periyar Mavatta DravidaPanchalai Thozhilalar Sangam, Cheran Palace, Gopalapuram, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

6. The Secretary, Desiya Panchalai Thozhilalar Sangam (NLO) Trichy Road, Ramanathapuram, Coimbatore..... Respondents in W.P.No.10850/97W.P.No.10850/1997:PETITION under Article 226 of The Constitution of India forissuance of Writ of Certiorari to call for the records in I.D.No.89of 1992 on the file of the Industrial Tribunal, Madras – 104, thefirst respondent herein and quash that portion of the award dated3.1.1997 through which the first respondent has held that the secondrespondent has representative capacity to espouse the cause of theworkmen and that the workmen are entitled to relief in respecto fissue Nos.1, 2, 3 and 8.For Petitioner : Mr.M.R.RaghavanFor Respondents 2 to 6 : Mr.K.M.RameshW.P.No.1430/1999:PETITION under Article 226 of The Constitution of India forissuance of Writ of Certiorari to call for the records in I.D.No.89of 1992 on the file of the Industrial Tribunal, Madras – 104, thefirst respondent herein and quash that portion of the award dated3.1.1997 and published in Tamil Nadu Gazette dated 23.7.1997 relatingto demands Nos. 4 to 7 in which the workers seek relief, and thefirst respondent/Industrial Tribunal has disallowed them.For Petitioner : Mr.K.M.RameshFor Respondents : Mr.M.R.Raghavan----------C O M M O N O R D E RThe Management is the writ petitioner in W.P.No.10850 of 1997challenging the award passed by the Industrial Tribunal, Madras inI.D.No.89 of 1992 dated 3.1.1997, filed the writ petition. 2. W.P.No.1430 of 1999 is filed by the Union against a portionof the award of the Industrial Tribunal in declining to give reliefto two demands raised by the Union.3. In view of interconnectivity between the two writ petitions,they were taken up together and common order is passed.4. The second respondent/Trade Union in W.P.No.10850 of 1997had originally raised a dispute with reference to charter demands on24.10.1988. Subsequently, when the failure report went to theGovernment, the State Government refused to refer the dispute. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, the Union filed a writ petition being W.P.No.221 of 1990and the same was allowed. The petitioner Management filed a reviewApplication in Review No.23 of 1991, which was rejected. It wasthereafter, by G.O.(D) No.1024, Labour and Employment Departmentdated 9.10.1992, eight issues were referred for adjudication. Thesaid dispute was taken on file as 89 of 1992 and notice was orderedto the parties. Only the second respondent had filed the claimstatement and no other trade union functioning in the petitionerestablishment came to support the cause of the second respondentunion.5. The petitioner Management filed a counter statement and inparagraph Nos.4 and 5, they have questioned the representativecapacity of the second respondent Union and stated that it has gotfew workers as its members and it is only a minority union and wasalso incompetent to raise the Industrial Dispute. It was also statedthat the Union had not obtained any authorisation from the workmen totake up the dispute.6. Before the Industrial Tribunal, apart from this preliminaryissue, the Management also took up the contention that between themajority workers and the Management, there were several settlementsright from the year 1988 and when the second respondent raised thedispute, all the workers had received the benefits arising from thesaid settlement and also filed those settlements before the Tribunal,which was also marked as Exs. M.3, M.5, M.10 and they were allsettlements under Section 12(3) and Ex.M.14 was a settlement underSection 18(1). Before the Tribunal, the Secretary of the secondrespondent Union, by name, S.Muthuswami, examined himself as W.W.1and on the side of the petitioner Management, one witness by name,S.Shanmugam was examined as M.W.1. Documents were also filed andthey were marked by both sides. During the cross examination of thesecond respondent Secretary, he admitted that the second respondentwas a splinter union from the AITUC and started only in the year 1987and they never sought for any recognition from the Management. Whena question was put as to how many members were there in the secondrespondent, W.W.1 replied that such a question was irrelevant to thedispute in question.7. Before the Industrial Tribunal, arguments were advanced bothon merits as well as on the representative capacity of the Union.This issue was dealt with by the Tribunal in paragraph 16 of theaward. The Tribunal exclusively referred to the decision of thisCourt in Workmen of Brooke Bond (India) Ltd., V. Industrial Tribunalreported in 1989 II LLN page 699 and thereafter held that since thepetitioner union's existence was not questioned, it is presumed thatthe said Union can raise a dispute and it also stated that even aminority union can raise a dispute. After referring to the oralevidence that there are 100 workers in the second respondent Union,the Tribunal came to the conclusion on the basis of the so called https://hcservices.ecourts.gov.in/hcservices/ evidence available on record that the Union has got a representativecapacity. It also referred to the decision of this court in orderingthe reference and therefore held that there could be a presumptionabout this representative capacity.8. This portion of the award completely misreads the legalposition with reference to the representative capacity as well asauthorisation that union must receive from its workmen. When aspecific plea is raised by the petitioner Management in the replystatement before the Tribunal, no attempt was made by the secondrespondent to either produce any membership register or thesubscription register from the workmen. No attempt was also made toproduce the minutes of the General Body by which the Union wasauthorised to take up the dispute. In the absence of the same, mererelying upon the direction given by this Court to make a referencecannot absolve the obligation cast upon the second respondent. Infact at the stage of the writ petition regarding declining to referthe issue was not about the representative capacity of the Union, butthe issue was whether the Government thought fit to refer thedisputes raised by the Union. In any event, even after reference ismade under Section 10(1) of the Act, the said reference must be avalid reference without which the Tribunal does not get anyjurisdiction. Further it is not as if the said issue can be decidedon the basis of pleadings between the parties and it has to beestablished by necessary proof produced before the Tribunal.9. Though the judgment of this court in Brooke Bond Case heldthat even a minority union can raise a dispute that is not anuniversal proposal when the representative capacity of the Union isunder dispute. In that case, before the Tribunal necessary documentswere filed to show that the dispute was supported by substantialsection of workmen. There the question was whether the casuallabourers who are seeking regularisation was entitled toregularisation in the absence of the permanent workmen supportingthem. There the Union representing the casual labourers justifiedbefore the Tribunal that they were having substantial following amongthat section of the workmen. In the present case, the issue isentirely different and the representative capacity of the union isquestioned. The second respondent union failed to prove the same.Therefore, it is not a fit case where a reference under Section 10(1)can be maintained by a Union which had not proved its representativecapacity so as to continue to maintain the dispute.10. On this short ground the award passed by the IndustrialTribunal dated 3.1.1997 is liable to be set aside and accordingly,the same is set aside. In that view of the matter being dealt withon this issue, the other contentions raised by the parties are notgone into in W.P.No.10850 of 1997. Accordingly, W.P.No.10850 of 1997is allowed. No costs. https://hcservices.ecourts.gov.in/hcservices/

11. Since the award is set aside on the ground of lack ofrepresentative capacity of the second respondent Union, necessarilyW.P.No.1430 of 1999 will have to be dismissed. Accordingly,W.P.No.1430 of 1999 is dismissed. No costs.Sd/- Assistant Registrar/True Copy/Sub Assistant RegistrarslToThe Presiding Officer, Industrial Tribunal, Madras – 104. + 1CC to Mr.M.R.Raghavan, Advocate, S.R.No.21438+ 1 CC to Mr.K.M.Ramesh, Advocate, S.R.No.21479 W.P.Nos.10850 of 1997 and 1430 of 1999SR (CO)SRA (28/04/2008)