- (1.)THREE workmen, namely, Baburam, Jainath and Ramsubhag, who were employed in the Katkona Colliery, Western Coalfields limited, were charge-sheeted by the Management on 30th April 1975 for going on Hunger Strike and for preaching and inciting other workers to go on strike. After a domestic enquiry, the services of these workmen were terminated by the management with effect from 22nd September 1975. The Madhya Pradesh koyla Mazdoor Panchayat, which is a registered trade union and of which the three workmen are members, took up the dispute and approached the Assistant labour Commissioner for conciliation. The Management showed no response to the conciliation on which the Central Government was approached. By order dated 5th April 1976, passed under section 10 (1) of the Industrial Disputes Act, 1947, the Central Government referred to the Industrial Tribunal presided over by Shri S. P. Bhargava the following dispute: 1
"whether the action of the management of Katkona Colliery of Western Coalfields ltd. Post Office Katkona, District Surguja (Madhya Pradesh) in dismissing Sarvasri baburam son of Kanayaram, Jainath son of Bodhan and Ramsubhag son of Bhagiraih with effect from 22-9-75 is justified? If not, to what relief are the said workmen entitled?"

(2.)SUBSEQUENTLY, the reference was transferred to the Central Government Industrial Tribunal cum-Labour Court, Jabalpur. When the matter came up before the Industrial Tribunal-cum-Labour Court, the Management took a preliminary objection that there was no industrial dispute which could be referred to the Tribunal. The preliminary objection was overruled by the industrial Tribunal-cum-Labour Court by its order dated 19th October 1977. The Management then filed this petition under Article 226 of the Constitution for quashing of the order of the Industrial Tribunal cum-Labour Court and the proceedings pending before it. The Management also applied for adjournment of the proceedings before the Tribunal which was refused. During the pendency of this petition, the Industrial Tribunal-cum-Labour Court by its award dated 23rd December 1977 adjudicated upon the dispute. The Tribunal held that the dismissal of the workmen was wholly unjustified and they were ordered to be reinstated with full back wages. The petitioner thereafter amended the petition incorporating therein the grounds for challenging the award.
(3.)THE first contention raised by the learned counsel for the petitioner is that the workmen did not make any demand on the Management before the reference of the industrial dispute was made by the Central Government and, in the absence of any demand made on the Management, there could be no industrial dispute which could be referred by the Government. In the same context, it was argued that the Madhya Pradesh Koyla Mazdoor Panchayat, which took up the dispute on behalf of the workmen, had very few members in the petitioner's colliery and, therefore, it cannot be said that the dispute was sponsored by sufficient number of workmen to make it an industrial dispute. In our opinion, there is no merit in this contention. Before introduction of section 2a by Amending Act No. 35 of 1965, the law was that when the dispute related to a single workman it could not be an industrial dispute until it was espoused by a sufficient number of workmen making it a common cause with the aggrieved individual workman. It was in that context necessary that before an individual dispute could be treated an industrial dispute it should be espoused by a sufficient number of workmen who should make a demand on the Management to convey that they have taken up the dispute of the individual workman and by that act have made it an industrial dispute. A workman whose dispute was not so espoused by a substantial number of workmen had no remedy. It was to obviate this difficulty that section 2a was inserted. This section says that "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of such discharge, dismissal, retrenchment, or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. " The effect of section 2a is that an individual workman who was discharged, dismissed or retrenched or whose services were otherwise terminated can be given relief without its being necessary for the relationship between the employer and the whole body of employees being attracted to that dispute and the dispute becoming a generalised one between labour on the one hand and the employer on the other : [see Chemicals and Fibers of India v. D. G. Bhoir (AIR 1975 SC 1660 at p. 1662) and Rust on and Hornsby (I) Ltd. v. T B. Kadarri (AIR 1975 SC 2025 at p. 2029)]. An individual dispute relating to discharge, dismissal, retrenchment or termination of a workman arises immediately the workman is discharged, dismissed, retrenched or terminated without his consent or in face of his opposition. This individual dispute because of the legislative fiat contained in section 2a becomes an industrial dispute. It is not necessary in such cases to make a demand on the Management for making the dispute an industrial dispute. Nor it is now necessary that such a dispute should be sponsored by the trade union or a substantial number of workmen. Learned counsel for the petitioner relied upon the case of S R Corpn v. Industrial Tribunal, Gujarat (AIR 1968 SC 529)for the proposition that as no demand was made on the Management, no industrial dispute could be referred by the Government. The case relied upon is a case under section 2 (k) of the Act and not under section 2-A. It was held in this case that a mere request to the Government without a dispute being raised by the workmen with their employer, cannot become an industrial dispute. The case has no application here because the dispute in that case had arisen before the enactment of section 2-A Learned counsel also relied upon the case of Jaipur Udyog Ltd. v. The Cement Works Karmachari Sangh (AIR 1972 SC 1352) In this case, the services of a workman in a quarry were terminated on the ground that he had attained the age of superannuation which was 55 years. The workman's dispute was that his age was not 55 but only 50 years. The workman had not questioned that the Management had no right to fix the age of superannuation. There was a reference made under section 10 of the Act to the Tribunal for deciding the dispute whether the termination of the workman concerned on the ground of superannuation was legal and justified. The tribunal held that the Management could not fix 55 years as the age of superannuation and, therefore, the termination was not justified. The Supreme court in this context held that the Tribunal had no jurisdiction to enlarge the dispute and say that the Management could not fix 55 years as the age of superannuation. In this connection it was pointed out that no question had been raised relating to the age of superannuation by the workman before the dispute was referred by the Government. The case no doubt makes a reference to the previous case of S. R. Corpn. (supra), but it does not decide that before a reference of a dispute covered by section 2a of the Act can be made by the government, it is necessary that the workman should have made a demand on the Management. Learned counsel for the petitioner has further relied upon the case of F. L. Corpn. (P) Ltd. v. Union of India (A I R 1970 Delhi. 60 ). This case does support the contention raised by the learned counsel for the petitioner. But, in our opinion, and we say it with great respect, the learned Judges failed to consider the change in law brought about by section 2a of the Act and by relying upon the case of S. R. Corpn. (supra), they held that a demand by the workman concerned on the Management was necessary before a reference of an industrial dispute could be made by the Government. For the reasons already indicated, we respectfully differ from the view taken by the Delhi High Court. In the instant case, the workmen were dismissed in face of their opposition in the domestic enquiry. That itself showed that there was a dispute between them and the Management in respect of their dismissal. Further, the union on their behalf approached the Assistant Labour Commissioner for reconciliation. The Labour Commissioner issued a notice to the Management, but no reply was sent to the notice. Intimation by the Labour Commissioner that a dispute as to the dismissal of the workmen has been placed before him by the union for conciliation was itself sufficient demand, if any demand was necessary, to make the dispute an industrial dispute. All that is necessary is that there should be an industrial dispute at the time when the reference is made. It is clear that in view of the above facts there was an industrial dispute in existence within the meaning of section 2a when the reference was made by the Central Government to the Tribunal. It may here be pointed out that the dismissed workmen are members of the union which took up their dispute. The said union may not be having other members in the petitioner's colliery, but that is an irrelevant circumstance. The dispute did not become an industrial dispute because it was taken up by the Trade Union; the dispute was an industrial dispute because of section 2a. The union only acted for the workmen as required by section 36 of the Act.