R.Bharathidasan v. The Presiding Officer, Industrial Tribunal, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.8.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.TAMILVANANWrit Appeals No.1518 of 1999 and 2066 of 2003and C.M.P.No.13602 of 1999W.A.No.1518 of 1999:1. R.Bharathidasan2. S.Narasimhan3. J.Manoharan4. K.Kumar5. S.Madhivanan6. T.Subramani7. V.Divijeyendran8. M.Govindan9. O.Krishnamurthy10.M.Radhakrishnan11.K.Jeganathan12.G.Krishnan... AppellantsVs.1.The Presiding Officer, Industrial Tribunal, Chennai.2.M.R.F.Limited Arakonam-Thiruthani Road, Itchiuputhur, Arakonam Taluk.3.M.R.F.Workers Union, represented by its Secretary, Itchiputhur Village & Post, Arakkonam Taluk, North Arcot District.... Respondents W.A.No.2066 of 2003:MRF Limited,Arakonam-Thiruthani Road,Ichiputtur,Arakonam Taluk... Appellants https://hcservices.ecourts.gov.in/hcservices/ Vs.1.The Presiding Officer, Industrial Tribunal, Madras.2. K.Nagaian3. D.Krishnamoorthy4. R.Bharathidasan5. T.Subramani6. Mondi Govindudu7. S.Narasimhan8. K.Jaganathan9. V.Divijendiran10.K.Kumar11.M.RAdhakrishnan12.J.Manoharan13.S.Mathivanan14.G.Krishnan... RespondentsWrit Appeals preferred under clause 15 of the Letters Patent.W.A.No.1518 of 1999 has been preferred as against the orderpassed by a learned single Judge of this Court dated 3.6.1999 made inW.P.No.975 of 1997 Writ Petition filed under Article 226 of theConstitution of India to issue a writ of certiorari to call for therecords connected with Memo No.4744/95 in I.D.No.11/94 and to quashthe order of Ist Respondent dated.7.10.96.W.A.No.2066 of 2003 has been preferred as against the orderpassed by a learned single Judge of this Court dated 27.7.1999 madein W.P.No.19367 of 1996. Writ Petition filed under Article 226 of theConstitution of India to issue a writ of certiorari to call for therecords of the Ist respondent connected with Memo No.4744/95 inI.D.No.11/94 and to quash the order dated.7.10.96.For appellants inW.A.No.1518/1999 & : Mr.V.Prakash, Sr.Counselfor R2 to R4 in for Mr.P.ChandrasekaranW.A.No.2066/2003For R.2 in WA.No.1518/1999 & : Mr.Sanjay Mohan, Sr.Counselfor appellant in for M/s.RamasubramanianWA.No.2066/2003 : Associates https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENTELIPE DHARMA RAO, J.The short question that is required to be answered by us inboth these matters is 'whether the workmen could independentlychallenge the lockout orders passed against them by the Management,when the Union, representing the majority of the workmen, which hasraised the dispute before the Labour Court, has decided to withdrawthe dispute, in view of the subsequent developments between the Unionand the Management?'2. The short facts, necessary for the disposal of these casesare that the M.R.F. Workers Union, the third respondent inW.A.No.1518 of 1999 has raised an Industrial Dispute pertaining tothe individual lockout of 71 workmen under Section 2(k) of theIndustrial Disputes Act before the Joint Commissioner of Labour andsince the same has ended in failure and on receipt of the failurereport, the Government has referred the dispute in G.O.Ms.No.77,dated 25.1.1994 and the said dispute was numbered as I.D.No.11 of1994 on the file of the Industrial Tribunal, Chennai. During thependency of this dispute, it seems, 58 workers and the Managemententered into a settlement under Section 18(1) of the IndustrialDisputes Act. The remaining 13 workmen concerned in the dispute,without changing the cause title of the reference, filed a claimstatement signed by them before the Tribunal and the learned counselwho represent the Union continued to represent the 13 workmen alsoand filed the claim statement. In these circumstances, the abovesaid Union, through its Secretary Mr.Vijayan, has filed Memo.No.4744of 1995, dated 22.12.1995 to withdraw the I.D.No.11 of 1994 and filedanother Memo.No.109 of 1996, stating that they have revoked thevakalat given to their advocates on record and engaged otherAdvocates. The 13 workmen took strong objection to these two memos.,by filing an objection stating that the lockout imposed upon these 13persons is yet to be resolved and that the Union cannot withdraw thedispute. It has also been stated that Mr.Vijayan, who filed thememos., as the Secretary of the Union, is not competent to withdrawthe dispute and he should act as per the decision of the CentralBody/Executive Committee of the Union and he cannot unilaterally takeany decision. And that there is no meeting of the Executive Committeeof the Union or the General Body of workmen resolving to withdraw thedispute as not pressed.3. Taking up both the memos. together, the Tribunal hasallowed the Memo. filed for withdrawal of the vakalat given to theearlier Advocates and dismissed the memo. filed for withdrawal of thedispute. In this course, the Tribunal has held that though it is adispute under Section 2(k) of the Industrial Dispute raised by theUnion, if the individual workers are affected, they can proceed withthe adjudication and that though 58 workers have entered intosettlements with the Management during the pendency of the dispute, https://hcservices.ecourts.gov.in/hcservices/ such settlements entered into between the individual workers and theManagement will not bind the other workers like the 13 workmen andtherefore, the Tribunal can adjudicate the dispute further and findout the truth and reach a finality. 4. Aggrieved by the said decision of the Tribunal in refusingpermission to withdraw the dispute, the M.R.F.Workers Union has filedW.P.No.975 of 1997 and the Management has filed W.P.No.19367 of 1996.Though both the writ petitions were filed against one and the sameorder passed by the Tribunal, they were taken up separately ondifferent dates by two learned Judges of this Court. In W.P.No.975of 1997 filed by the Union, a learned single Judge of this Court hasheld that when once the Union, which has raised the dispute, iswilling to withdraw the same, the only course open for the Tribunalis to close the dispute as withdrawn, since the individual workmen donot come into the picture in a collective dispute and that therejection to withdraw the dispute would affect industrial peace andtranquility. On such grounds, the learned single Judge has allowedthe said Writ Petition No.975 of 1997 filed by the Union, by hisorder dated 3.6.1999. Following this order passed in W.P.No.975 of1997, dated 3.6.1999, another learned single Judge of this Court, bythe order dated 27.7.1999, has dismissed the writ petition No.19367of 1996 filed by the Management as infructuous, since the very sameorder under challenge has already been quashed in W.P.No.975 of 1997.5. Aggrieved against the order passed by the learned singleJudge in W.P.No.975 of 1997, dated 3.6.1999, the individual workers,numbering 12 have come forward to prefer W.A.No.1518 of 1999 and theManagement, aggrieved against the order dated 27.7.1999 passed inW.P.No.19367 of 1996, has come forward to prefer W.A.No.2066 of 2003.6. Before proceeding to discuss the above mentioned legalquestion, it must be mentioned that out of the 13 workers, who havefiled objection before the Tribunal and are the respondents 3 to 15before the learned single Judge in W.P.No.975 of 1997, only 12workers have come before this Court in W.A.No.1518 of 1999 and on acomparison of the array of parties, we are able to see that oneK.Nagaiah, who is the fourth respondent in W.P.No.975 of 1997, hasnot joined the appellants in W.A.No.1518 of 1999 to challenge theorder of the learned single Judge.7. In CENTRAL PROVINCES TRANSPORT SERVICE LTD. vs. RAGHUNATHGOPAL [AIR 1957 SC 104], it has been held by the Honourable SupremeCourt that 'the preponderance of judicial opinion was clearly infavour of the view that a dispute between an employer and a singleemployee cannot per se be an industrial dispute but it may become oneif it is taken up by an Union or a number of workmen.' It has alsobeen held as follows:"Notwithstanding that the language of Sec.2(k) is wide https://hcservices.ecourts.gov.in/hcservices/ enough to cover disputes between an employer and asingle employee, the scheme of the Industrial DisputesAct does appear to contemplate that the machineryprovided therein should be set in motion to settle onlydisputes which involve the rights of workmen as a classand that a dispute touching the individual rights of aworkman was not intended to be the subject ofadjudication under the Act, when the same had not beentaken up by the Union or a number of workmen."8. In RAM PRASAD VISHWAKARMA vs. CHAIRMAN, INDUSTRIALTRIBUNAL, PATNA AND OTHERS [AIR 1961 SC 857], a Three Judge Bench ofthe Honourable Apex Court, referring to the above judgment inRaghunath Gopal's case, has held that"7. This view which has been re-affirmed by the Court inseveral later decisions recognises the great importance inmodern industrial life of collective bargaining betweenthe workman and the employers. It is well known howbefore the days of collective bargaining labour was at agreat disadvantage in obtaining reasonable terms forcontracts of service from his employer. As trade unionsdeveloped in the country and collective bargaining becamethe rule the employers found it necessary and convenientto deal with the representatives of workmen, instead ofindividual workmen, not only for the making ormodification of contracts but in the matter of takingdisciplinary action against one or more workmen and asregards all other disputes.8. The necessary corollary to this is that the individualworkman is at no stage a party to the industrial disputeindependently of the Union. The Union or those workmenwho have by their sponsoring turned the individual disputeinto an industrial dispute, can therefore, claim to have asay in the conduct of the proceedings before the Tribunal.9. It is not unreasonable to think that Sec.36 of theIndustrial Disputes Act recognises this position, byproviding that the workman who is a party to a disputeshall be entitled to be represented by an officer of aregistered trade union of which he is a member. While itwill be unwise and indeed impossible to try to lay down ageneral rule in the matter, the ordinary rule should inour opinion be that such representation by an officer ofthe trade union should continue throughout the proceedingsin the absence of exceptional circumstances which mayjustify the Tribunal to permit other representation of theworkman concerned...." https://hcservices.ecourts.gov.in/hcservices/

9. In MANAGER, HOTEL IMPERIAL, NEW DELHI vs. CHIEFCOMMISSIONER [AIR 1959 SC 1214], the Honourable Apex Court has heldthat 'to an industrial dispute a single workman or some workmen orthe workmen as a body may be parties. Relying on this judgment ofthe Honourable Apex Court, a Division Bench of the Orissa High Courtin THE MANAGEMENT OF MESSRS. GAMMON (INDIA) LTD. vs. STATE OF ORISSAAND OTHERS [1974-II- LLJ, internal page No.34, has held that 'areference under the Act would be maintainable if it is described as adispute between the management on the one side and its workmen on theother. For convenience of procedure such a notice,fixation of dateof hearing, etc. The body of workmen is usually represented through aunion.'10. In HERBERTSONS LTD. vs. THE WORKMEN OF HERBERTSONS LTD.AND OTHERS [AIR 1977 SC 322], the Honourable Apex Court has held asfollows:"When a recognised Union negotiates with an employer theworkers as individuals do not come into the picture. Itis not necessary that each individual worker should knowthe implications of the settlement since a recognisedunion, which is expected to protect the legitimateinterests of labour, enters into a settlement in the bestinterests of labour. This would be the normal rule.There may be exceptional cases where there may beallegations of mala fides, fraud or even corruption orother inducements. But, in the absence of suchallegations a settlement in the course of collectivebargaining is entitled to due weight and consideration."(emphasis supplied)11. In K.C.P. LTD. vs. PRESIDING OFFICER AND OTHERS [VOL.89FJR 632], a Three Judge Bench of the Honourable Apex Court has heldthat"the dispute having been raised by the workers' union onbehalf of all the 29 workmen, and it was an industrialdispute as defined in section 2(k) and not one underSection 2-A, and the 12 workmen were at the relevant timemembers of the union and continued to be members thereof,it was that union which was in charge of the proceedingsand could represent all the 29 dismissed workmen. Whenthe union, having considered the pros and cons of thesituation, entered into the settlement on behalf of allthe workmen, it was binding on all the 29 dismissedworkmen, unless the settlement was found to be ex facieunjust and unfair; and the 12 workmen, who could be saidto be parties to the settlement through theirrepresentative union, could not go behind the settlement.The Labour Court had to pass an award in terms of thesettlement by treating it to be binding on the 12 workmen https://hcservices.ecourts.gov.in/hcservices/ also." (emphasis supplied) 12. No doubt, the dispute in the case on hand was raised underSection 2(k) of the I.D. Act by the Union as a collective dispute andit is not a dispute under Section 2-A of the I.D.Act raised by theindividual workmen. On a thorough analysis of the above judgments ofthe upper forums of law, we could see that there is no complete baron an individual workman to pursue the dispute, if the settlementarrived at by the Union is tainted with malafide, fraud or corruptionand the individual workmen could very well fight for their cause. 13. In the case on hand, the strong case of the workmen isthat as against the illegalities being committed by the Management,they have organised themselves under the CITU Union, which has irkedthe Management, resulting in issuing charge-sheets on falseallegations, wage-cut, suspension, increment cut, transfer from onedepartment to another and in August 1991, workmen numbering 70 wereplaced under suspension and there were series of agitations conductedby the workmen against the victimisation and talks were held beforethe Superintendent of Police Mr.Sawani and a compromise was reachedbetween the Superintendent of Police and the management agreed towithdraw the suspension against all the above 70 workmen. It hasalso been contended on behalf of the workmen that the Management wentagainst their commitment and in the case of apprentices andprobationers, they were terminated from service under the guise ofefflux of time as provided in the order of appointment and byadopting an improper method, all the probationers and apprentices,numbering about 100, were terminated between August, 1991 andOctober, 1992 and the office bearers and the activists were dismissedby the management on false charges and thus the intention of themanagement was to strangulate and wipe out the CITU and to force theworkmen to accept the puppet Union, namely the MRF Cycle tyre union,sponsored by the management. 14. From the materials placed on record, we are also able tosee that since the individual workmen were also approaching thecounsel on record for the Union before the Tribunal, the Union, hasfiled a memo. to change their counsel. Though a client is at hiswill and wish to change the counsel, from the attitude of the Union,we are able to see that only to prevent the workmen from approachingthe advocates of the Union for any of their grievances, the Union,appears to be a puppet of the Management, has taken this decision ofchanging the counsel themselves. 15. On an analysis of the entire facts and circumstances ofthe case, we are able to see that the earlier attempt of the workersto organise themselves with the CITU, has caused eye-sore to theManagement, leading to initiation of various disciplinary proceedingsand ultimately the individual lock-out orders and the present MRFWorkers Union was created by the Management, as a puppet Union and https://hcservices.ecourts.gov.in/hcservices/ that by using all forces on all fours, the Management was able toachieve, through the puppet Union, to bow down certain employees toaccept the settlements prepared in a cyclostyled manner by theManagement and since the rest of the individual workers have notagreed for such illegal threats imposed on them by the Union and theManagement, the Union, in a cunning manner, by playing fraud has comeforward with the plea to withdraw the dispute itself and since theirindividual right of personal lock out has to be adjudicated anddecided by the Tribunal, the Tribunal has rightly dismissed theillegal and immoral prayer of the Union. 16. Since from the above referred judgments, it is clear thatfraud vitiates everything and there is no complete bar on theindividual workmen, whose rights are at stake, to continue thedispute before the Tribunal, we have no hesitation to hold that insuch circumstances of fraud played by the Union, the individualworkers can very well come into picture to save their rights and tofight for the same, and can very well proceed with the dispute,originally raised by the Union. The legal question involved in theabove matters is answered, thus, in favour of the workmen, confirmingthe view taken by the Tribunal and setting aside the contraobservations made by the learned single Judge in W.P.No.975 of 1996.17. However, now from the materials placed on record by theManagement, it is seen that out of even these 12 workers, theManagement has dismissed six workmen - appellants 4,5 7 and 10 to 12in W.A.No.1518 of 1999 viz. K.Kumar, S.Madhivanan, V.Divijeyendran,M.Radhakrishnan, K.Jeganathan and G.Krishnan - for certain allegedmisconducts after holding domestic enquiry and the Management hasalso filed Approval Petitions under Section 33(2)(b) of the I.D. Actbefore the Industrial Tribunal, Chennai. During the pendency of theabove Approval Petitions, the Management has also filed InterlocutoryApplications to let in fresh evidence by the Management in theunlikely event of the Industrial Tribunal vitiating the fairnessenquiry and since the Tribunal has dismissed the said petitions, theManagement has filed Writ Petitions and they are pending. 18. It is also seen from the counter of the Management thatthe remaining six appellants refused to give undertakings till6.12.1996 (i.e. even after 4 ½ years) and consequently, theManagement has terminated the services of these six appellants alsofor an alleged 'reasonable cause' and against this order oftermination, the remaining six appellants i.e. appellants 1 to 3, 6,8 and 9 viz. R.Bharathidasan, S.Narasimhan, J.Manoharan, T.Subramani,M.Govindan and O.Krishnamurthy have filed complaints before theTribunal under Section 33-A of the I.D.Act. During the pendency oftrial, out of these six complainants also, D.Krishnamoorty andR.Bharathidasan (appellants 1 and 9) have settled their issue of non-employment by way of Section 18(1) settlements and Awards were passedas these complainants have withdrawn the complaints and the remaining https://hcservices.ecourts.gov.in/hcservices/ complainants have contested the matter and after an elaborate trial,the Tribunal dismissed the complaints by the Award dated 15.4.2004,as against which they have filed W.P.No.1655 of 2007 before thisCourt and the same is pending. It has also been submitted by theManagement that since W.P.No.975 of 1996 was allowed by the learnedsingle Judge, permitting the Union to withdraw the dispute, theTribunal has passed an award dismissing I.D.No.11 of 1994 on28.7.1999 and therefore, as on date, I.D.No.11 of 1994 is not pendingand hence the question of continuing I.D.No.11 of 1994 by theremaining workmen does not arise. On such facts, the Management wouldpray to dismiss these writ appeals. As has already been clarifiedsupra, one Nagaiah has not joined the appellants in W.A.No.1518 of1999, but however, the Management in their counter affidavit has alsomentioned his name as if he is also contesting the appeal.19. Since I.D.No.11 of 1994 has already been dismissed by theTribunal on 28.7.1999, after the judgment of the learned single Judgein W.P.No.975 of 1996, nothing remains to be adjudicated in I.D.No.11of 1994, as of now. Even though at the time of admission ofW.A.No.1518 of 1999, an order of stay was passed on 18.8.1999, sincethe same came to be passed only after the dismissal of I.D.No.11 of1994 on 28.7.1999, the said stay order has no help to the case of theindividual workmen. Therefore, since the main case in I.D.No.11 of1994 itself has been dismissed by the Tribunal, virtually, both thesewrit appeals became infructuous. However, it is made clear that theindividual workmen can very well work out their legal remediesavailable to them, if they are so advised, since even a new cause ofaction has arisen for them. With the above observations, both these writ appeals aredisposed of. No costs. Consequently, C.M.P.No.13602 of 1999 isclosed.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarRao ToThe Presiding Officer,Industrial Tribunal,Chennai.+ 2 CC to M/s.S.Rama Subramaniam & Associates,SR.39666,39665+ 1 CC to Mr.P.Chandrasekaran,Advocate,SR.38980 W.A.Nos.1518/1999 & 2066/2003TM(CO)EM/29.9.09