SABYASACHI MUKHARJI, J. - (1.) Six petitioners, who are the partners of a business carried on under the name and style of 'Sinclair and Company' have made this application under Article 226 of the Constitution challenging an award of the 1st Labour Court dated the 5th October. 1974 There was a reference under Section 10 of the Indus trial Disputes Act. 1947, of an industrial dispute ' said to have been existing be - tween Messrs. Sinclair and Company and their workmen represented by the Motor Workers' Union. Calcutta. Howrah, and 24 Parganas. The question referred to was whether termination of services of one Dilip Kumar Dutta was justified and, secondly. to what relief, if any. was he entitled. The case of the workman was that he was employed by Messrs. Sinclair and Company and worked in the company for about one and a half year under the supervision of the company's officer Shri Prabir Kumar Mitra and the workman Shri Dilip Kumar Dutta used to drive the motor car No. WBJ -2760 belonging to the company. It is the further case of the workman that he had served the company faithfully and loyally. On the 19th July, 1971, when he went to join his duties, all on a sudden he was told that his services would no longer be required without aasigning any reason. No notice of termination of his services was given. It was further contended that the termination of services of Shri Dutta was illegal, mala fide and against the principles of natural justice. The Union, therefore, prayed before the 1st Labour Court for reinstatement of Shri Dutta with all back wages and other amenities. On the other hand it was the case of the company that the workman Dutta was not an employee of the company. It was stated that he was appointed as a driver of Shri Prabir Kumar Mitra as salaried assistant of the company. As he was irregular in attendance and had absented himself without notice on different occasions, he was dismissed by Shri Prabir Kumar Mitra after several warnings. The company. therefore, contended that Shri Dutta was never an employee of the company and he was an employee of Prabir Kumar Mitra. It was the case of the company that the order of reference was invalid, void and conferred no jurisdiction on the Labour Court as there was no relationship of master and servant between Dilip Kumar Dutta and the Company and the said Dutta was not a workman as defined in the industrial Disputes Act and there was no industrial dispute existing between the parties. After written statements were filed before the 1st Labour Court evidence was adduced before the said Labour Court. The 1st Labour Court on the 5th October, 1974. made an award whereby the 1st Labour Court came to the conclusion that Dilip Kumar Dutta was an employee of the company and, therefore, the reference was valid and the dismissal was unjustified. Therefore, the 1st Labour Court directed reinstatement of the workman in his services and to pay all his back wages @ Rs. 160 per month for the unemployed period within one month of the publication of the award.
(2.) Being aggrieved by the aforesaid award of the 1st Labour Court the petitioners moved this application under Article 226 of the Constitution. Counsel for the petitioners urged before me that in respect of two basic questions, namely. whether there was existence of an industrial dispute and whether there was employer and employee relationship between the company and the workman Dilip Kumar Dutta the 1st Labour Court had committed errors by misdirecting itself on the burden of proof and on various other points. It was further urged that the Lab - our Court being a body of limited jurisdiction, it was for the respondents to prove that the Labour Court had jurisdiction because the onus was on the person who wanted the Labour Court to exercise jurisdiction. It was further urged that on the question whether Shri Dutta was an Employee of the company even if the Labour Court had erroneously decided that question, that question being a jurisdictional fact, this Court in an application under Article 226 of the Constitution was competent to decide that fact and come to the conclusion whether the 1st Labour Court's decision was correct or not. In support of this proposition reliance was placed on a passage in Halsbury's Laws of England, Third Edition, Vol. 9. Article 820 at page 349. The passage is to the following effect: "Prima facie. no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so. while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognisance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction. so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court for example, is a court of universal sal jurisdiction and superintendency certain classes of actions and cannot be deprived of its ascendency by 41 0w'ing that some other court could have entertained the particular action. In an inferior court, other than a county court. unless the proceedings show on their face that the cause of action arose within its jurisdiction the action cannot be maintained and even in inferior courts with a local limit of jurisdiction it must appear that such limit is not being exceeded." Reliance in this connection was placed by counsel for the petitioners on the decision in the case of Ramendra Naravan Deb v. Eighth Industrial Tribunal, (197.1) 78 Cal WN 787 = (1975 Lab IC 94) (Cal.). In that case it was held that in deciding whether a person was a workman the determining factor was the principal or main work he was required to do in his employment. Any other work which a person was required to do incidentally in connection with his principal or main work or other - wise as a small fraction of his work would not convert the nature of his employment. It was further held that the Evidence Act did not apply to industrial adjudications but even so the principle of law enunciated on the burden of proof and onus was the basic principle of law which the Industrial Tribunals were also required to follow. Where no difficulty arose, the Bench observed, in arriving at a conclusion on the evidence adduced, the question respecting onus receded into the background but when the Court found it difficult to make up its mind. the question of onus came to the foreground and be - came the determining factor. When after the entire evidence was adduced, the Tribunal felt that it could not make up its mind as to which of the versions was true, it would hold that the party on whom the burden lay had not discharged the burden. In that case it was found that the evidence adduced by the appellant was discrepant and insufficient for arriving at the conclusion that the petitioner was a workman not employed in a supervisory capacity and the evidence adduced by the respondent employer was also inconclusive with the result that it was difficult to arrive at the conclusion either way, it was held by the Division Bench of this Court that the appellant had failed to discharge the burden which lay on him of proving that he was a workman and his application under Section 33 -A of the Industrial Disputes Act, 1947, had been rightly rejected. It is further held that although in a proceeding under Article 226 of the Constitution the High Court ordinarily had no jurisdiction to interfere with the findings of fact arrived at by an industrial tribunal, the High Court had the power to review the finding in respect of jurisdictional facts on the evidence on record. Relying on this Bench decision counsel for the petitioners contended that as to whether there was an industrial dispute and in the said dispute workers of the petitioners were concerned and whether Dilip Kumar Dutta was an employee of the petitioners were all jurisdictional facts. Therefore, this 'Court was competent to review the findings of the 1st Labour Court on these facts. The principles where under the court normally did not interfere with the findings of fact arrived at by the Labour Courts or bodies em - powered to adjudicate disputes of this nature would not apply to the findings on jurisdictional fact. In my opinion counsel for the petitioners is right in his contention.
(3.) In this case there are two questions which counsel for the petitioners agitated firstly whether there was any industrial dispute between the workmen of the company and the company and, secondly whether the workman concerned, namely, Dilip Kumar Dutta was an employee of the petitioners. Counsel for the petitioners contended that there was no evidence to show that the Union, namely, the Motor Workers' Union, Calcutta, Howrah, 24 -Parganas and Hooghly had anything to do with the workmen or employees of the petitioners. It was urged that there was no evidence to indicate that there was any dispute pending between their workmen and Sinclair and Company over the issue of termination of services of Shri Dilip Kumar Dutta. It was further urged that in order that a dispute' between Sinclair and Company and the workmen concerned could be validly referred to under the Industrial Disputes Act it should have been taken up by the Union to which the employees or number of employees of the company concerned belonged. In aid of this principle reliance was placed by counsel for the petitioners on the Bench decision of this Court in the case of Deepak Industries v. State of West Bengal, (1975) 79 Cal WN 410 = (1975 Lab IC 1153) where the Division Bench of this Court held that an industrial dispute might be raised by an individual. If a group of workmen raised a dispute, that could also constitute an industrial dispute within the meaning of the Industrial Disputes Act, 1947. But when a dispute was espoused or sponsored by a union and the authority of the union was challenged by the employer it must be proved by production of material evidence before the Tribunal to which the dispute might have been referred that the union had been duly authorised either by a resolution of its members or otherwise that it had the authority to represent the workmen whose cause it was espousing. The mere fact that the union was registered tinder the Trade Unions Act, 1926, was not conclusive proof of its real existence or the authority to represent the workmen concerned. Mere negotiations by some officials of such a union with the employers for conciliation or executing certain documents on behalf of the workmen prior to the reference were not conclusive proof of such authority. It was immaterial whether such a union was a general union of the workmen of a particular industry or it was a union of the particular establishment relating to which the dispute had arisen. in each case in ascertaining whether an individual dispute had acquired the character of an industrial dispute, the test was whether at the date of the reference the dispute was taken up or supported by the union of the workmen of the employer against whom the dispute was raised by an individual workman or by an appreciable number of workmen. The Bench was also of the view that in order that a dispute between a single employee and his employer could be validly referred under the Industrial Disputes Act. 1947. it was necessary that it should have been taken up by the union to which the employee belonged or by a number of employees. The parties to a reference being the employer and his employees the test must necessarily be whether the dispute referred to was one in which the workmen or a substantial section of them had a direct and substantial interes, even though such a dispute related to a single individual. The Division Bench further held that where the workmen whose cause was expoused by a union were not members of the said union at the date when the reference under Section 10 of the Industrial Disputes Act. 1947. was made and none of the said workmen had raised any dispute with their employer it was incumbent upon the union to produce material and documentary evidence to show that it had the requisite authority to represent the said workmen either a resolution of the members or authorisation by any individual workman concerned or substantial numbers of them. In the absence of proof of such authority the union had no locus standi to represent the workmen concerned, there was no industrial dispute within Section 2 (k) of the Industrial Disputes Act, 1947 and the reference and the award made was invalid.;