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Full Case Details
RUMA PAL, J. – 2. The appellant was employed by the respondent. He claimed promotion
as a clerk. When this was not granted, the appellant raised an industrial dispute. The question
whether the appellant was justified in his prayer for promotion with effect from the date that
his juniors were promoted was referred to the Industrial Tribunal by the State Government. In
their written statement before the Tribunal the respondent denied the appellant’s claim for
promotion on merits. In addition, it was contended by the respondent that the individual
dispute raised by the appellant was not an industrial dispute within the meaning of Section
2(k) of the Industrial Disputes Act, 1947, as the workman was neither supported by a
substantial number of workmen nor by a majority union. The appellant claims that his cause
was espoused by the Gokak Mills Staff Union.
- Before the Tribunal, apart from examining himself, the General Secretary of the Union
was examined as a witness in support of the appellant’s claim. The General Secretary
affirmed that the appellant was a member of the Union and that his cause has been espoused
by the Union. Documents including letters written by the Union to the Deputy Labour
Commissioner as well as the objection filed by the Union before the Conciliation Officer were
adduced in evidence. The Tribunal came to the conclusion that in view of the evidence given
by the General Secretary and the documents produced, it was clear that the appellant’s cause
had been espoused by the Union which was one of the unions of the respondent employer. On
the merits, the Tribunal accepted the appellant’s contentions that employees who were junior
to him had been promoted as clerks. It noted that no record had been produced by the
respondent to show that the management had taken into account the appellant’s production
records, efficiency, attendance or behaviour while denying him promotion. The Tribunal
concluded that the act of the respondent in denying promotion to the appellant amounted to
unfair labour practice. An award was passed in favour of the appellant and the respondent was
directed to promote the appellant as a clerk from the date his juniors were promoted and to
give him all consequential benefits. - The award of the Industrial Tribunal was challenged by the respondent by way of a writ
petition. A Single Judge dismissed the writ petition. The respondent being aggrieved filed a
writ appeal before the appellate court. The appellate court construed Section 2(k) of the
Industrial Disputes Act, 1947 and came to the conclusion that an individual dispute is not an
industrial dispute unless it directly and substantially affects the interest of other workmen.
Secondly, it was held that an individual dispute should be taken up by a union which had
representative character or by a substantial number of employees, before it would be
converted into an industrial dispute neither of which according to the appellate court, had
happened in the present case. It was held that there was nothing on record to show that the
appellant was a member of the Union or that the dispute had been espoused by the Union by
passing any resolution in that regard. - The definition of “industrial dispute” in Section 2(k) of the Act shows that an industrial
dispute means any dispute or difference between employers and employers, or between
employers and workmen, or between workmen and workmen, which is connected with the
113
employment or non-employment or the terms of the employment or with the conditions of
labour, of any person. The definition has been the subject-matter of several decisions of this
Court and the law is well settled. The locus classicus is the decision in Workmen v.
Dharampal Premchand (Saughandhi) [AIR 1966 SC 182] where it was held that for the
purposes of Section 2(k) it must be shown that: (1) The dispute is connected with the
employment or non-employment of a workman. (2) The dispute between a single workman
and his employer was sponsored or espoused by the union of workmen or by a number of
workmen. The phrase “the union” merely indicates the union to which the employee belongs
even though it may be a union of a minority of the workmen. (3) The establishment had no
union of its own and some of the employees had joined the union of another establishment
belonging to the same industry. In such a case it would be open to that union to take up the
cause of the workmen if it is sufficiently representative of those workmen, despite the fact
that such union was not exclusively of the workmen working in the establishment concerned.
An illustration of what had been anticipated in Dharampal case is to be found in Workmen v.
Indian Express (P) Ltd. [(1969) 1 SCC 228] where an “outside” union was held to be
sufficiently representative to espouse the cause. - In the present case, it was not questioned that the appellant was a member of the Gokak
Mills Staff Union. Nor was any issue raised that the Union was not of the respondent
establishment. The objection as noted in the issues framed by the Industrial Tribunal was that
the Union was not the majority union. Given the decision in Dharampal case the objection
was rightly rejected by the Tribunal and wrongly accepted by the High Court. - As far as espousal is concerned there is no particular form prescribed to effect such
espousal. Doubtless, the union must normally express itself in the form of a resolution which
should be proved if it is in issue. However, proof of support by the union may also be
available aliunde. It would depend upon the facts of each case. The Tribunal had addressed its
mind to the question, appreciated the evidence both oral and documentary and found that the
Union had espoused the appellant’s cause. - The Division Bench misapplied the principles of judicial review under Article 226 in
interfering with the decision. It was not a question of there being no evidence of espousal
before the Industrial Tribunal. There was evidence which was considered by the Tribunal in
coming to the conclusion that the appellant’s cause had been espoused by the Union. The
High Court should not have upset this finding without holding that the conclusion was
irrational or perverse. The conclusion reached by the High Court is therefore unsustainable. - For all these reasons the decision of the High Court cannot stand and must be set aside.
- Learned counsel appearing for the respondent then submitted that the matter may be
remanded back to the Division Bench of the High Court as the Court had not considered the
other arguments raised by the respondent while impugning the award of the Industrial
Tribunal. It appears from the impugned decision that the only other ground raised by the
respondent in the writ appeal was that the grievance of the appellant had been belatedly
raised. We have found from the decision of the Industrial Tribunal that no such contention
had been raised by the respondent before the Tribunal at all. We are not prepared to allow the
respondent to raise the issue before the High Court.
114 - The respondent finally submitted that pursuant to disciplinary proceedings initiated
against the appellant in the meanwhile, the appellant had been dismissed from service and that
the order of dismissal was the subject-matter of a separate industrial dispute. We are not
concerned with the propriety of the order of dismissal except to the extent that the appellant
cannot obviously be granted actual promotion today. Nevertheless, he would be entitled to the
monetary benefits of promotion pursuant to the award of the Industrial Tribunal which is the
subject-matter of these proceedings up to the date of his dismissal. Any further relief that the
appellant may be entitled to must of necessity abide by the final disposal of the industrial
dispute relating to the order of dismissal which is said to be pending. - We therefore allow the appeal and set aside the decision of the High Court. The award
of the Industrial Tribunal is confirmed subject to the modification that the promotion granted
by the award will be given effect to notionally for the period as indicated by the award up to
the date of the appellant’s dismissal from service. Reliefs in respect of the period subsequent
to the order of dismissal shall be subject to the outcome of the pending industrial dispute
relating to the termination of the appellant’s services. If the termination is ultimately upheld,
the appellant will be entitled only to the reliefs granted by us today. If on the other hand the
termination is set aside, the appellant will be entitled to promotion as granted by the award.
