- (1.) This order will dispose of CWP Nos. 17820 of 2005 and 8766 of 2006 as both the writ petitions arise out of a common award dated 24.3.2005 passed by the Presiding Officer, Industrial Tribunal, Punjab, Chandigarh. The brief facts giving rise to the filing of these writ petitions are that Malkiat Singh who is petitioner in CWP No. 17820 of 2005 (for short "the workman") was appointed as Daily Wage Security Guard with the petitioner in CWP No. 8766 of 2006 and respondents No. 2 and 3 in CWP No. 17820 of 2005 i.e. Punjab State Electricity Board (for short "the Board") on 8.1.1988 (for short "the Board"). The services of the workman were regularized w.e.f. 15.3.1993. He retired from the services of the Board as regular Security Guard on 31.10.2000. He has been denied the benefit of service rendered on daily wages for the purpose of pensionary benefits. The dispute of the workman was espoused by the Consumer Welfare Association, Sujanpur, Pathankot by passing a resolution dated 5.2.2000. It is the case of the Board that on the date when the resolution was passed by the aforesaid Union, the workman was not a member of the said Union. However, the workman became member of the said Union on 12.3.2000. A demand notice with regard to grant of pensionary benefits was also served by the workman on the Board on 2.3.2000. Since the Conciliation proceedings failed, the Labour Commissioner, Punjab, Chandigarh made a reference of the dispute for adjudication to Labour Court vide notification dated 2.8.2001 being Reference No. 92/2001 that whether it is justified to count the service of the workman-Malkiat Singh rendered by him as daily wager Security Guard for pensionary benefits. Both the parties led their respective evidence before the Tribunal. Vide award dated 24.3.2005, the Tribunal has held the services rendered by the workman as daily wages as liable to be counted for the purpose of pensionary benefits, but the Tribunal denied the said benefit on the ground that the workman was not a member of the Union on 5.2.2000 the date on which the resolution was passed by the Union for espousal of the cause of the workman. Thus, both the parties i.e. the workman and the Board have challenged the aforesaid award dated 24.3.2005 (Annexure P-1) by filing these petitions filed under Articles 226/227 of the Constitution of India. I have heard learned Counsel for the parties and perused the record. Learned Counsel for the workman submits that although the Tribunal has held that the services rendered by the workman as daily wager is liable to be counted, but the Tribunal has erred in holding that the espousal of the cause of the workman is not proper and thus, the workman has been denied the grant of pensionary benefits. The statute does not give any mandate that the dispute of a workman must be espoused by workers' Union only. Section 36 of the Industrial Disputes Act, 1947 (for short "the Act") deals with the representation of parties which reads as under:-- 36. Representation of Parties--(1) A workman who is a party to dispute shall be entitled to be represented in any proceeding under this Act by-- (a) any member of the executive or other office-bearer of a registered trade union of which he is a member; (b) any member of the executive or other office-bearer of a federation of trade unions to which the trade union referred to in clause (a) is affiliated. (c) where the worker is not a member of any trade union, by any member of the executive or other office-bearer of any trade union connected with, or by any other workman employed in the industry in which the worker is employed and authorized in any such manner as may be prescribed.
(2.) Undisputedly, the workman was not a member at the time of passing the resolution by the Trade Union espousing the cause of the workman vide Ex. W-7 dated 5.2.2000. It is also not disputed that the workman later became member of the Union on 12.3.2000 vide Ex. W/6. It is also not denied by the respondent-Board in the written statement filed before this Court that the workman also made a demand notice dated 2.3.2000 which was served upon the respondent-Board. From the perusal of provisions contained in section 1 (c) of the Act, it is crystal clear that when a workman is not a member of any trade union, even the cause of the said workman can be espoused by any member of the executive or other office-bearer of any trade union connected with, or by any other workman employed in the industry in which the worker is employed and authorized in any such manner as may be prescribed. In this view of the matter, the Tribunal was not justified in denying the pensionary benefits to the workman on such technical and flimsy ground that the workman was not a member of the trade union at the time of passing of resolution which espoused the cause of the workman. The cause of a workman can be espoused not only by the Trade Union, but also by any member of the executive or other office bearer of any trade union connected with or by any other workman employed in the industry in which the worker is employed. Not only this, the workman even made a demand notice dated 2.3.2000 himself raising the dispute, which fact is also not disputed in the written statement filed by the respondent-Board. The Tribunal has even failed to take into consideration the validity of the reference that the reference in question was made by the appropriate government on 2.8.2001 i.e. after the workman became member of the said Trade Union on 12.3.2000. It is settled proposition of law that the validity of a reference must be judged on the facts as they stand on the date of reference. While dealing with the question of validity of a reference, in the case of The Bombay Union of Journalists v. The, Hindu Bombay, and another, 1961 3 FLR 466, the Hon'ble Supreme Court has held as under:-- ..............In each case in ascertaining whether an individual dispute has acquired the character of an industrial dispute the test is whether at the date of the reference the depute was taken up as supported by the Union of the workmen of the employer against whom the dispute is raised by an individual workman or by an appreciable number of workmen. If Venkateswaran or Tiwari had prior to the date of the reference supported the cause of Salivateeswaran, by their subsequent affidavits the reference could not have been invalidated. But as we have already observed there was, in fact, no support to the cause of Salivateeswaran by Venkateswaran or by Tiwari and therefore the dispute continued to remain an individual dispute....
(3.) While relying on the aforesaid observations of the Hon'ble Supreme Court, a Division Bench of the Patna High Court in the case of Workman of jamadoba Colliery of Tata Iron and Steel Company Limited v. Jamadoba Colliery of Tata Iron and Steel Company Limited, Jamadoba and another, 1967 2 LLJ 663, has observed as under:-- On these principles, there seems no special reason why, in this case, it could not be held that the dispute regarding the validity of dismissal of workman Tulsi became an industrial dispute on 19.12.1963, the date on which the reference was made. Before that date a union of the workers of Jamadoba Colliery had come into existence, the dismissed workman had become a member of the union and his cause had been espoused by the union. I am unable to find any principle in support of the view taken by the tribunal that the union itself must have been in existence prior to the date of dismissal, and that the workman should have been a member of that union prior to that date. If such a view be taken, the growth of trade union movement on healthy lines will be somewhat adversely affected.;