- (1.) The petitioner is a company incorporated under the laws of Japan. It carries on business of general importer and exporter at No. P-17, Mission Row Extension in Calcutta. In its business the petitioner employed certain number of workmen. Such workmen includes drivers of motor vehicles belonging to the petitioner. Such workers of the petitioner who are employees for driving the motor vehicles are three in number. In March, 1968, a trade union by the name of the Calcutta Motor Workers Union raised certain demands including conveyance allowance for the drivers and stoppage of the 'Log Book' system on behalf of the petitioner's drivers. It is the case of the petitioner that the said Workers Union was not at any time a trade union of the collective body of the petitioner's workmen nor were a substantial number of the petitioner's workers members of the said trade union. The petitioner further contends that the petitioner's workmen collectively never raised any dispute with the petitioner in relation to the aforesaid demands. In the premises, it was the case of the petitioner that the said Union was incompetent to take up any matter on behalf of the petitioner's workmen with the petitioner. However, in spite of the petitioner's aforesaid contentions a conciliation proceeding was started by the Assistant Labour Commissioner, West Bengal, who is the 4th respondent to this application. During the continuance of the said conciliation proceeding one of the petitioner's drivers, namely K. Jha was charged with certain alleged acts of misconduct warranting his dismissal. The petitioner held a domestic enquiry into the matter, as a result of which it has been said that the said Jha was found guilty of misconduct alleged against him. The petitioner, therefore, decided to dismiss the said workman from service. The said alleged acts of misconduct related to certain alterations unauthorisedly made by the said Jha in his Log Book. The petitioner on the plea that such a misconduct might be connected with the dispute in respect of which the conciliation proceedings were pending before the 4th respondent, made an application under Section 33(1) (b) of the Industrial Disputes Act, for the permission to dismiss the said workman. Thereupon the said 4th respondent expressed the view that the said alleged misconduct was not connected with the conciliation proceedings and as such there was no scope of an application under Section 33(1)(b) of the said Act. In the premises the petitioner on 18th June 1968 made another application under section 33(2) (b) of the said Act to the 4th respondent for approval of the dismissal of the said Jha. It is further the case of the petitioner that neither Jha nor any person on his behalf nor any other workman of the petitioner raised any dispute with the petitioner over his dismissal. Without deciding the application for approval of dismissal the reference was made by the Government under section 10 to the 4th Industrial Tribunal. It is necessary in view of the contentions raised in this case to set out the issues referred : ?1. Whether the dismissal of Sri K. Jha, driver is justified. To what relief if any is the entitled? 2. Conveyance allowance for drivers. 3. Whether the change in service condition of drivers by stopping the system of log book by stopping the system of log book is justified? To what relief are they entitled? Thereafter the 4th Industrial Tribunal, namely, the 1st respondent herein, entered into the reference and directed the parties to file their respective written statement. The petitioner contended that there was no industrial dispute ad as such there could not be a reference under section 10. Upon this contention a preliminary issue was decided by the 1st respondent. The 1st respondent by his order dated 17th December, 1969 has decided the preliminary objection that he Tribunal had jurisdiction to proceed with the Reference. Being aggrieved by the said order dated 17th December 1969 the petitioner has moved this Court under Article 226 of the Constitution.
(2.) The first contention that was urged on behalf of the petitioner before the 4th Industrial Tribunal was that the Calcutta Motor Workers Union which presented the charter of demands and between whom and the company the conciliation proceeding was pending did not represent at any point of time a majority or even a substantial portion of the workmen of the company and as such this Union had no locus standi to represent the workmen concerned in the present dispute. It has to be mentioned that the Union which was purporting to represent the workmen was Calcutta Motor Workers Union and by the order of Reference the dispute that has been referred to is a dispute between the petitioner company and their workmen represented by Motor Workers Union, Calcutta, Howrah and 24-Parganas and Hooghly It was contended on behalf of the petitioner before the Tribunal and the said contention was repeated here in this Court that the two Unions were different. The Tribunal on an appraisement of the evidence had come to the conclusion that the said two Unions were the same. The Tribunal relying on Ext. A read with Ext. B(1) held that the Union which presented the charter of demands had subsequently changed its name as Motor Workers Union, Calcutta, Howrah, 24-Parganas and Hooghly as mentioned in the order of reference. Counsel for the petitioner contended that such a finding was erroneous. I am unable to accept this contention. In the context of the facts of Tribunal has come to the conclusion that the charter of demands had been presented by the same Union that was representing the workmen at the reference. Therefore such finding has not suffered, in my opinion, from any infirmity.
(3.) It was next contended, however, that most of the workmen of the petitioner-company were not parties to the dispute. As a matter of fact 21 of the workmen of the company had written to the company stating that they were not interested in the dispute and the Union in question did not represent them. There was no evidence that anyone apart from the 3 motor drivers were members of the said Union. Upon this it was contended on behalf of the petitioner that the substantial section of the workmen did not raise this alleged dispute and as such there was no scope of a reference under section 10 of the Industrial Disputes Act, 1947. There was evidence before the Tribunal that the three motor drivers had joined the Union in question. There was also evidence before the Tribunal and the Tribunal has accepted that the workmen had written to the conciliation officer that they were not supporting this cause and that they were not members of the Union. Upon this the Tribunal has come to the conclusion that the Union in question had locus standi to represent the workers in his dispute and as such the first contention against the validity of the order of reference was rejected by the Tribunal. Counsel for the petitioner challenges the propriety of this finding before me. Counsel for the petitioner contended that in order to be an industrial dispute capable of a reference under section 10 it has to be a dispute by the workmen and the company and an individual dispute of three workmen can be a dispute apart from section 2A only in these disputes were taken up by a substantial section of the workmen of particular industry. This was not reference under section 10 read with section 2A of Act between the company ad three workmen. Counsel first drew my attention to the decision of the Supreme Court in the case of (1) Niemla Textile Finishing Mills Ltd. and others v. The 2nd Punjab Tribunal and others, A.I.R. 1957 S.C. 329 and relied on the observations of the Supreme Court at page 337. There a contention was raised that under section 10 and unguided discretion had been granted to the State Government in making an order of reference. Repelling the contention the Supreme Court observed that the basic idea underlying all the provisions of the Act was the settlement of industrial disputes and the promotion of industrial peace so that production might not be interrupted and the community in general might be benefited. This was the end which had got to be kept in view by the appropriate government when exercising the discretion which was vested in it in the matter of making the reference to one or the other of the authorities under the Act and also in the matter of carrying out the various provisions contained in the other sections of the Act including the curtailment or extension of the period of operation of the award of the Industrial Tribunal. The Supreme Court also observed that the purpose sought to be achieved by the Act had been well defined in the preamble to the Act. The scope of industrial dispute was defined in S. 2(k) of the Act and there were also provisions contained in the other sections of the Act which related to strikes and lock-outs, lay-off and retrenchment as also the conditions of service etc., remaining unchanged during the pendency of proceedings. These and analogous provisions, according to the Supreme Court, sufficiently indicated the purpose and scope of the Act as also the various industrial disputes which might arise between the employers and their workmen which might have to be referred for settlement to the various authorities under the Act. Reliance was also placed on the decision of the Supreme Court in the case of (2) Newspapers Ltd. v. State Industrial Tribunal, U.P. and others, A.I.R. 1957 S.C. 533. There the Supreme Court observed that the Act was based on the necessity of achieving collective amity between labour and capital by means of conciliation, mediation and adjudication. The object of the Act was the prevention of industrial strife, strikes and lock-outs and the promotion of industrial peace and not to take the place of ordinary tribunals of the land for the enforcement of contract between an employer and an individual workman. Reliance was then placed on the decision of the Supreme Court in the case of Re: Express newspapers (Private) Ltd. v. First Labour Court, West Bengal and others, A.I.R. 1959 Cal. 265. There D. N. Sinha, J. ( as his lordship then was) held that an individual dispute between an employer and one of his workmen, was by itself not an industrial dispute which could be referred under Section 10 of the Industrial Disputes Act, but such an individual dispute might be transformed into an industrial dispute, provided that the cause of the particular workman concerned was taken up a majority of workmen concerned in the particular industrial establishment, or by an Union of such workmen. The Court was concerned in that case with the dispute before the introduction of section 2A of the Industrial Disputes Act. The Court further observed that the Industrial Disputes Act was a legislation intended to ensure industrial harmony and when an individual case was taken up by a class of workmen, then it became an industrial struggle and lost its limited scope. But a workman's cause could not be taken up by a Union unconnected with the employee or the industry concerned. The employer was not concerned with the workmen who were not in his employ. He could not possibly have an industrial dispute or any dispute with such persons. The real test appeared to be as to whether the majority, or a large portion of the workmen employed in the particular industry, were concerned in the dispute or not. Where the Union was of the workmen employed in that particular industry, it might be presumed that when the Union took up the cause of an individual workman it signified a concerted action on the part of the workmen who were members of that Union. But it was not possible for a Union of workmen unconnected with the particular industry concerned, to take up such a clause and transform it into an industrial dispute between a particular employer and his workmen. Counsel for the petitioner also drew my attention to the decision in the case of (3) Workmen of Indian Express Newspaper Private Ltd. v. The Management of Indian Express Newspaper Private Ltd. reported in A.I.R. 1970 S.C. 737. There a dispute relating to two workmen in a newspaper establishment in Delhi arose in July 1959. Thereafter the dispute was espoused by the Delhi Union of Journalists, an outside Union, whose membership was open to the members of the newspaper establishment concerned. The dispute was referred to the Industrial Tribunal in August 1961. The question arose whether the dispute was an industrial dispute (and not an individual dispute) as the Delhi Union of Journalists not being exclusively a Union of the workmen employed in the newspaper establishment concerned, had espoused the said cause. It was found that about 25 per cent of the working journalists of the newspaper establishment concerned at least were members of the Delhi Union of Journalists. It was clear from the evidence that at the material time there was no union of working journalists employed by the newspaper establishment concerned and upon these facts the Supreme Court held that the Delhi Union of Journalists could be said to have a representative character qua the working journalists employed in the newspaper establishment concerned, and the dispute was transferred into an ?industrial dispute?.;