- (1.) D. K. Seth, J. The petitioner No. 1 is a Federation of Trade Union recognised under Rule 40 of the U. P. Industrial Dis putes Rules, 1957. The petitioner No. 2 is a Trade Union registered under the Trade Union Act, 1926. The employees of the Respondent No. 2 are members of the said Union. The petitioner No. 2 is one of the Constituent of respondent No. 1. The respondent No. 1 espoused the cause of two workmen namely Sri Ram Raj Sinha and Sri Jogendra Nath Upadhyay, whose services were terminated, out of which two references were made by the State Government. The petitioner No. 1 espoused the cause of the workman Sri Jogendra Nath Upadhyaya relating to his claim of wages for the period 16-3-1981 till 19-3- 1981. Out of the said three references Adjudication Case Nos. 115/81, 145/81 and 44 of 1982 were registered in the Labour Court, Allahabad. A question had been raised as to the competence of the petitioner No. 1 to espouse the cause of the said workmen, who were not members of the petitioner No. 1, but members of petitioner No. 2, who is member of the petitioner No. 1. By an order dated 21-12- 1982 the Labour Court had held that the petitioner No. 1 was not competent to espouse the cause of the said workmen and, therefore, the reference is bad. It is against this order, the present writ peti tion has been moved.
(2.) LEARNED counsel for the petitioner Sri K. P. Agarwal, contends that the im pugned order is bad in law, inasmuch as the federation is also a Trade Union. Therefore, there is no bar in espousing the cause of members of its affiliated units. According to him the objection is purely technical in nature in respect of two of the disputes which are against the order of termination in as much as in those two cases individual workman can have also maintained the dispute by reason of Sec tion 2-A of the Industrial Disputes Act as well as Industrial Disputes Act, 1947 (hereinafter referred to as U. P. Act and the Central Act respectively ). Therefore, it is immaterial as to who has espoused the cause. He contends further that the proce dure or mode of the cause of a workman by the Union has not been provided either in the two Acts or in the Rules framed there under. In view of Section 2-A the position has altogether changed. Sri V. R. Agarwal, learned counsel appearing on behalf of respondents, on the other hand contends that unless the workman is a member of a particular Trade Union, his cause cannot be espoused by such Trade Union. Since the workman are not member of the Federation of the petitioner No. 1, the petitioner No. 1 is incompetent in espousing the cause of the workmen. In support of his contention he refers to the definition of the 'trade Union' as defined in Section 2 (qq) of the Central Act, defining "trade Union' means a Trade Union registered under the Trade Unions Act, 1926. He further refers to Section 2 (h) of the Trade Union Act, 1926, which by defining the "trade Union' ex presses that the Trade Union includes any federation of two or more Trade Unions. He further contends relying on the rule for representation that the question of com petence of a Union has to be construed with reference to the rule of repre sentation. He relies on various decisions, to which we shall refer shortly, in support of his contention. Now the reference is made under Section 4-K of the U. P. Act and Section 10 of the Central Act. Section 10 of the Central Act which is almost pan materia identical to Section 4-K of the U. P. Act, has prescribed that where the appropriate Government is of the opinion that any Industrial dispute exist or apprehended, it may, at anytime, by order in writing, refer the dispute to, (a) the Board, (b) Court of enquiry, (c) the Labour Court, and (d) the Tribunal. Therefore, it is the satisfaction of the Government for the purposes of for mation of opinion that an Industrial dis pute exist or is apprehended. So far as the order of dismissal is concerned is also an Industrial dispute, as defined in Section 2 (k) of the Central Act and Section 2 (1) of the U. P. Act. The moment the State Government forms an opinion that a dis pute exist or is apprehended, it acquires jurisdiction to refer the matter. Such a reference cannot be questioned. The In dustrial dispute, as defined in Section 2 (k), defines the dispute to mean, any dispute or difference between the employer and workmen with the employment or non-employment or terms of the employment or with the conditions of labour of any person. Dismissal are surely non- employ ment and an industrial dispute. If the cause of a workman is taken up by the Union the same becomes a dispute be tween the employer and the workmen and, if not, then the order of dismissal, gives rise to individual dispute within the mean ing of Section 2-A of the Act. So far as the payment of wages are concerned the same may p espoused by ''le Union so as to make it a dispute between the employer and the workmen.
(3.) NOW it is an established principle of law that reference is made after the failure report is submitted by the concilia tion officer in usual cases. But there might be cases where reference can be made even without failure report or without waiting for the failure report or even without in itiation of Conciliation proceeding. The Court can refer the dispute not only where Industrial dispute exist but when it is ap prehended. Shambhu Nath Goel v. Bank of Baroda, 1978 (2) SCC 353, and reference can be made even before receiving the conciliation report. Ram Krishna Mill v. Government of Tamil, 1985 (2) LLJ 259. A reference can be made without initiating conciliation proceeding, Jasloke Hospital and Research Centre v. Industrial Tribunal and orders, 1984 (1) LLJ 76. Admittedly, the petitioner No. 1 is a Trade Union within meaning of Section 2 (h) of the Trade Union Act, 1926. The Trade Union defined in the Industrial Dis putes Act, has not made any difference between the Trade Union or the Federa tion of Trade Union. The Trade Union defined in the Industrial Disputes Act in cludes the 'trade Union' as well as its 'federation'. Now in order to be a dispute, the dispute should exist between the employee and the workman. A Union when takes up the cause it become the cause of the workmen. Such Union should be one which operates in the field or class of industry, in which the workman is in volved. In the present case it is not dis puted that the Federation works in the field, in which the Class of industry, in which workman was involved, is covered. The very union namely the petitioner, from which the workmen are members, is affiliated with the federation. The federa tion being a Trade Union, within the meaning of Section 2 (h) of the Trade Union Act, it can not be disputed that it is not a Trade Union as defined in Section 2 (qq) of the Industrial Disputes Act. Therefore, in my view the petitioner No. 1 is equality competent to espouse the cause of the workmen, particularly when a par ticular Trade Union, being the petitioner No. 2 is also involved in it.;