Shiv Dayal J. -
(1.) THIS is a petition under Articles 226 and 227 of the Constitution for a writ of certiorari and other suitable directions to quash the award-dated April 17, 1967, made by Shri G. C. Agarwala, Presiding Officer of the Central Industrial Tribunal-cum-Labour Court, Jabalpur, in the matter of an industrial dispute between the employers of New Chirimiri Ponri Hill Colliery (hereinafter called the 'Colliery'), and their workmen.
(2.) THE Government of India in the Ministry of Labour and Employment, referred the following dispute to the Central Government Industrial Tribunal, Bombay, by a notification dated September 10, 1965 :-
"Whether the management of New Chirimiri Ponri Hill Colliery was justified in dismissing the following workmen ? (1) Ramna Pande. (2) Dharni Kar, (3) Triveni. (4) Noni Gopal. (5) Nikhil Kumar Dutt. (6) G. Mohanti. If not to what relief are they entitled ?" Later on, the matter was transferred to the Central Industrial Tribunal-cum- Labour Court, Jabalpur, by notification dated September 17, 1966. By his award the learned Tribunal found that the action of the management in dismissing the six workers was unjustified. Accordingly, he ordered their reinstatement and also directed the employers to pay these employees, except Triveni,
back wages from the date of their dismissal till reinstatement. Aggrieved by the award, this petition was filed by the employers for the above relief.
At the very outset the Tribunal has given the genesis of the dispute. M. P. Koyala Mazdoor Panchayat is a registered Union with its office at the Kurasia Colliery in the Korea coal-field. Its membership is open to all workers of the collieries in the Madhya Pradesh. The New Chirimiri Ponri Colliery is one of the neighbouring collieries of the Kurasia Colliery. When the M. P. Koyala Mazdoor Panchayat (hereinafter called the 'Union') was approached by the workmen, this Union decided, by resolution dated December 27, 1964, to extend its activities for enrolment of members in the employer- colliery also. Between November 30, 1964, and January 9, 1965, about 130 members were enrolled, including the 6 concerned workmen. Thereafter, these 6 workmen were charge-sheeted and dismissed, after holding domestic enquiries by the Labour Welfare Officer. According to the Union the action of the management was mala fide and was calculated to victimise the workmen for becoming members of this Union, and the termination of their services was not due to any misconduct. The management of the Colliery denied the allegations and contended that the workmen concerned were guilty of misconduct so that the action taken by the management was justified.
Shri Thakur, learned counsel for the petitioner, raised a preliminary point before us, as was also raised before the Tribunal. The contention is that the Tribunal had no jurisdiction, as the dispute referred to it was not an 'industrial dispute' and the Union was not competent to raise that dispute. The point taken before us precisely is that the number of workmen who had joined the Union was not appreciable. The Tribunal had found that about 100 workmen out of 1,600 had become members of the Union. According to Shri Thakur, at least 30 of them had disowned membership and made affidavits so that there were left only 70 who had joined the Union.
(3.) THE question arose in the present case before the insertion of section 2-A in the Industrial Disputes Act by the Industrial Disputes (Amendment) Act, 1965 (Act No. 35 of 1965). Under the new section 2-A, even an individual dispute, arising out of discharge, dismissal, retrenchment or termination, in an industrial dispute notwithstanding that no other workmen or any union of workmen is a party to the dispute. But, before the enactment of this new section, it was established by a long line of decisions that an individual dispute could not, per se, be an industrial dispute; it could be one, if the cause was espoused by a registered Trade Union or an appreciable number of workmen. THE Industrial Disputes Act contemplates primarily that the machinery it provides can be set in action to settle only such disputes as involve the rights of workmen as a class. Before an individual dispute can be called an industrial dispute it has to be seen whether the workmen concerned or the workmen sponsoring his cause satisfy the conditions of section 2(A) of the Act. THE workmen have the right of collective bargaining with regard to various matters in which they are interested. Collective bargaining is "an agreement between a single employer or an association of employers on the one hand, and a labour union upon the other, which regulates the terms and conditions of employment", (per Ludwig Teller on Labour Disputes and Collective Bargaining, Vol. I, page 476).
Even a single employee's dispute could be an industrial dispute, if it was taken up by a Union or a number of workers, who make a concerted demand for redress. Before the decision in Central Provinces Transport Services Ltd. v. Raghunath Gopal Patwardhan, AIR 1957 SC 104=(1957) ILLJ 27 (SC), there were three different views: (1) An individual dispute could not be an industrial dispute. [See, for instance, J. Chowdhary v. M. N. Benarjee, (1951) 55 CalWN 256]. (2) It was an industrial dispute [See, for instance, Swadesi Cotton Mills Ltd. v. Ramzani, (1953) ILLJ 277 (FB)]. (3) It could not per se be an industrial dispute, but could become one, if it was taken up by a Trade Union or a number of workmen. [See, for instance, Bilas Chandra Mitra v. Balmer Lawrie and Co., (1953) ILLJ 337]. The Supreme Court, in Central Provinces Transport Services Ltd. (1) upheld the last of the three views and it was affirmed in Newspapers Ltd. v. Industrial Tribunal, AIR 1957 SC 532=(1957) II LLJ 1, where the Supreme Court observed that "in spite of the fact that the making of a reference by the Government under the Industrial Disputes Act is the exercise of its administrative powers, it is not destructive of the rights of the aggrieved party to show that what was referred was not an industrial dispute at all........";