2005 JTR(SC) 234
2005 27 AIC 55 ; 2005 AIR(Jhar)(R) 880 ; 2005 AIR(SC) 998 ; 2005 AIR(SCW) 901 ; 2005 5 AWC 4074 ; 2005 DNJ 210 ; 2005 104 FLR 1005 ; 2005 ILR(Kar) 1525 ; 2005 2 JCR(SC) 15 ; 2005 2 JT 378 ; 2005 3 KarLJ 62 ; 2005 2 KLT(SN) 72 ; 2005 LIC 2254 ; 2005 1 LLJ 1089 ; 2005 1 LLN 1081 ; 2005 2 Scale 98 ; 2005 3 SCC 202 ; 2005 SCC(L&S) 377 ; 2005 2 SCR 88 ; 2005 2 SLR 602 ; 2005 2 UPLBEC 1625 ; 2005 1 WBLR 632 ; 2005 KHC 461 ; 2005 2 Supreme 69
2005(2) Supreme 69
Supreme Court of India
(From Karnataka High Court)
Mrs. Ruma Pal & C.K. Thakker, JJ.
J.H. Jadhav —Appellant
versus
M/s. Forbes Gokak Ltd. —Respondent
Civil Appeal No. 1089 of 2005
(Arising out of SLP (C) No. 19025 of 2004)
Decided on 11-2-2005
Counsel for the Parties :
For the Appellant : G.V. Chandrashekhar and P.P. Singh, Advocates.
For the Respondent : Raj Birbal, Sr. Advocate, U.A. Rana, Arvind Kumar, Madhup Singbhal and S. Chatterjee, Advocates for M/s. Gagrat & Co., Advocates.
Important pointAn industrial dispute between a single workman and his employer has to be sponsored or espoused by the Union of workmen or by a number of workmen.
Act Referred :INDUSTRIAL DISPUTES ACT : S.2(k)
(A) The Industrial Disputes Act, 1947 (referred via Section 2(k)) defines an industrial dispute as any dispute connected with employment or non-employment or terms of employment or conditions of labour between an employer and workmen, or between workmen and workmen. The definition requires that a dispute involving a single workman must be shown to have been sponsored or espoused by a union or by a number of workmen to qualify as an industrial dispute, as established in leading precedents. In this case, the Act and its judicial interpretation determine whether the promotion claim of an individual workman, supported by a union, falls within the scope of an industrial dispute cognizable by an Industrial Tribunal.
(B) Key legal principles include: (i) an individual dispute becomes an industrial dispute if it is connected with employment and is espoused by a union or a substantial number of workmen; (ii) the union need not be the majority union, and an outside union representing the workmans interests may be sufficient; (iii) espousal may be inferred from conduct, resolution, or documentary evidence; (iv) the finding of a tribunal on espousal is binding unless irrational or perverse; and (v) appellate courts exercise limited review under Article 226, intervening only if the tribunals conclusion is without evidence or irrational.
Facts of the case:
The appellant was an employee of the respondent and sought promotion to the post of clerk. When his juniors were promoted and his claim was denied, he raised an industrial dispute. The dispute was referred to an Industrial Tribunal by the State Government. The respondent denied the claim on merits and argued that the dispute was not an industrial dispute because it was an individual claim not supported by a substantial number of workmen or a majority union. The appellant asserted that his cause was espoused by the Gokak Mills Staff Union. The Tribunal examined the Unions General Secretary and reviewed documents, including letters and objections, and held that the union had espoused the appellants cause. It found no record of the management considering the appellants performance, and concluded that denying promotion amounted to unfair labour practice, awarding promotion and consequential benefits. The respondent challenged the award through a writ petition and an appeal, contending that the dispute was not an industrial dispute as the union lacked majority status and representative character, and that there was no evidence of espousal. The Single Judge dismissed the petition, and the Appellate Court allowed the appeal, setting aside the tribunals award.
Findings of Court:
The High Court held that under the principles laid down in the leading case on Section 2(k), an individual dispute is an industrial dispute if it is connected with employment and is sponsored or espoused by a union, even if it is not the majority union. The Court found that the Tribunal properly appreciated the evidence of espousal, including union membership, a resolution, and documentary support, and that the High Court erred in interfering with the Tribunals finding under Article 226. The Division Bench misapplied principles of judicial review by upsetting a rational conclusion supported by evidence. The Supreme Court agreed, noting that there was sufficient evidence of espousal and that the High Court had no basis to overturn the Tribunals finding without holding it irrational or perverse.
Issues:
(i) Whether an individual dispute regarding promotion, supported by a union but not by a majority of workmen, qualifies as an industrial dispute within Section 2(k) of the Industrial Disputes Act, 1947. (ii) Whether a union lacking majority status can espouse the cause of an individual workman and bring the dispute within the definition of an industrial dispute. (iii) Whether the High Court correctly interfered with the Industrial Tribunals finding on the question of espousal under Article 226, and whether the conclusion was irrational or without evidence.
Ratio Decidendi:
Under Section 2(k) of the Industrial Disputes Act, 1947, a dispute connected with employment is an industrial dispute if it is between an employer and workmen or between workmen and workmen, and if a workmans individual dispute is shown to be sponsored or espoused by a union, irrespective of whether the union is a majority union. Proof of espousal may include membership, union resolutions, and other supporting documents. An Industrial Tribunals finding on espousal is not to be disturbed on appeal unless it is irrational or perverse, and a higher court must respect the tribunals appreciation of evidence in the absence of such infirmity.
Result:
The appeal is allowed. The High Courts decision setting aside the Industrial Tribunals award is set aside. The award of the Industrial Tribunal is confirmed, with the direction that the appellant be promoted notionally from the date his juniors were promoted up to the date of his dismissal, subject to the outcome of any pending disciplinary proceedings relating to his dismissal.
(A) The Industrial Disputes Act, 1947 (referred via Section 2(k)) defines an industrial dispute as any dispute connected with employment or non-employment or terms of employment or conditions of labour between an employer and workmen, or between workmen and workmen. The definition requires that a dispute involving a single workman must be shown to have been sponsored or espoused by a union or by a number of workmen to qualify as an industrial dispute, as established in leading precedents. In this case, the Act and its judicial interpretation determine whether the promotion claim of an individual workman, supported by a union, falls within the scope of an industrial dispute cognizable by an Industrial Tribunal.
(B) Key legal principles include: (i) an individual dispute becomes an industrial dispute if it is connected with employment and is espoused by a union or a substantial number of workmen; (ii) the union need not be the majority union, and an outside union representing the workmans interests may be sufficient; (iii) espousal may be inferred from conduct, resolution, or documentary evidence; (iv) the finding of a tribunal on espousal is binding unless irrational or perverse; and (v) appellate courts exercise limited review under Article 226, intervening only if the tribunals conclusion is without evidence or irrational.
Facts of the case:
The appellant was an employee of the respondent and sought promotion to the post of clerk. When his juniors were promoted and his claim was denied, he raised an industrial dispute. The dispute was referred to an Industrial Tribunal by the State Government. The respondent denied the claim on merits and argued that the dispute was not an industrial dispute because it was an individual claim not supported by a substantial number of workmen or a majority union. The appellant asserted that his cause was espoused by the Gokak Mills Staff Union. The Tribunal examined the Unions General Secretary and reviewed documents, including letters and objections, and held that the union had espoused the appellants cause. It found no record of the management considering the appellants performance, and concluded that denying promotion amounted to unfair labour practice, awarding promotion and consequential benefits. The respondent challenged the award through a writ petition and an appeal, contending that the dispute was not an industrial dispute as the union lacked majority status and representative character, and that there was no evidence of espousal. The Single Judge dismissed the petition, and the Appellate Court allowed the appeal, setting aside the tribunals award.
Findings of Court:
The High Court held that under the principles laid down in the leading case on Section 2(k), an individual dispute is an industrial dispute if it is connected with employment and is sponsored or espoused by a union, even if it is not the majority union. The Court found that the Tribunal properly appreciated the evidence of espousal, including union membership, a resolution, and documentary support, and that the High Court erred in interfering with the Tribunals finding under Article 226. The Division Bench misapplied principles of judicial review by upsetting a rational conclusion supported by evidence. The Supreme Court agreed, noting that there was sufficient evidence of espousal and that the High Court had no basis to overturn the Tribunals finding without holding it irrational or perverse.
Issues:
(i) Whether an individual dispute regarding promotion, supported by a union but not by a majority of workmen, qualifies as an industrial dispute within Section 2(k) of the Industrial Disputes Act, 1947. (ii) Whether a union lacking majority status can espouse the cause of an individual workman and bring the dispute within the definition of an industrial dispute. (iii) Whether the High Court correctly interfered with the Industrial Tribunals finding on the question of espousal under Article 226, and whether the conclusion was irrational or without evidence.
Ratio Decidendi:
Under Section 2(k) of the Industrial Disputes Act, 1947, a dispute connected with employment is an industrial dispute if it is between an employer and workmen or between workmen and workmen, and if a workmans individual dispute is shown to be sponsored or espoused by a union, irrespective of whether the union is a majority union. Proof of espousal may include membership, union resolutions, and other supporting documents. An Industrial Tribunals finding on espousal is not to be disturbed on appeal unless it is irrational or perverse, and a higher court must respect the tribunals appreciation of evidence in the absence of such infirmity.
Result:
The appeal is allowed. The High Courts decision setting aside the Industrial Tribunals award is set aside. The award of the Industrial Tribunal is confirmed, with the direction that the appellant be promoted notionally from the date his juniors were promoted up to the date of his dismissal, subject to the outcome of any pending disciplinary proceedings relating to his dismissal.
Judgment
Ruma Pal, J.—Leave granted.
2. The appellant was employed by the respondent. He claimed promotion as a clerk. When this was not granted, the appellant raised an industrial dispute. The question whether the appellant was justified in his prayer for promotion with effect from the date that his juniors were promoted was referred to the Industrial Tribunal by the State Government. In their written statement before the Tribunal the respondent denied the appellant’s claim for promotion on merits. In addition, it was contended by the respondent that the individual dispute raised by the appellant was not an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act, 1947, as the workman was neither supported by a substantial number of workmen nor by a majority union. The appellant claims that his cause was espoused by the Gokak Mills Staff Union.
3. Before the Tribunal, apart from examining himself, the General Secretary of the Union was examined as a witness in support of the appellant’s claim. The General Secretary affirmed that the appellant was a member of the Union and that his cause has been espoused by the Union. Documents including letters written by the Union to the Deputy Labour Commissioner, as well as the objection filed by the Union before the Conciliation Officer were adduced in evidence. The Tribunal came to the conclusion that in view of the evidence given by the General Secretary and the documents produced, it was clear that the appellant’s cause had been espoused by the Union which was one of the Unions of the respondent employer. On the merits, the Tribunal accepted the appellant’s contentions that employees who were junior to him have been promoted as clerks. It noted that no record had been produced by the respondent to show that the Management had taken into account the appellant’s production records, efficiency, attendance or behaviour while denying him promotion. The Tribunal concluded that the act of the respondent in denying promotion to the appellant amounted to unfair labour practice. An award was passed in favour of the appellant and the respondent was directed to promote the appellant as a clerk from the date his juniors were promoted and to give him all consequential benefits.
4. The award of the Industrial Tribunals was challenged by the respondent by way of a writ petition. A Single Judge dismissed the writ petition. The respondent being aggrieved filed a writ appeal before the Appellate Court. The Appellate Court construed Section 2(k) of the Industrial Disputes Act 1947 and came to the conclusion that an individual dispute is not an industrial dispute unless it directly and substantially affects the interest of other workmen. Secondly it was held that an individual dispute should be taken up by a Union which had representative character or by a substantial number of employees before it would be converted into an industrial dispute neither of which according to the Appellate Court, had happened in the present case. It was held that there was nothing on record to show that the appellant was a member of the Union or that the dispute has been espoused by the Union by passing any resolution in that regard.
5. The definition of “Industrial Dispute” in Section 2(k) of the Act shows that an Industrial Dispute means any dispute or difference between an employer and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of the employment or with the condition of labour, of any person. The definition has been the subject matter of several decisions of this Court and the law is well settled. The locus classicus is the decision in Workmen of M/s. Dharampal Premchand (Saughandhi) Vs. M/s. Dharampal Premchand (Saughandhi) 1965 (3) SCR 394 where it was held that for the purposes of Section 2(k) it must be shown that (1) the dispute is connected with the employment or non employment of a workman. (2) the dispute between a single workman and his employer was sponsored or espoused by the Union of workmen or by a number of workmen. The phrase “the union” merely indicates the Union to which the employee belongs even though it may be a Union of a minority of the workmen. (3) the establishment had no union on its own and some of the employees had joined the Union of another establishment belonging to the same industry. In such a case it would be open to that Union to take up the cause of the workmen if it is sufficiently representative of those workmen, despite the fact that such Union was not exclusively of the workmen working in the establishment concerned. An illustration of what had been anticipated in Dharam Pal’s case is to be found in the Workmen of Indian Express Newspaper (Pvt.) Ltd. Vs. Management of Indian Express Newspaper Private Ltd. AIR 1970 SC 737 where an `outside’ union was held to be sufficiently representative to espouse the cause.
6. In the present case, it was not questioned that the appellant was a member of the Gokak Mills Staff Union. Nor was any issue raised that the Union was not of the respondent establishment. The objection as noted in the issues framed by the Industrial Tribunal was that the Union was not the majority Union. Given the decision in Dharam Pal’s case, the objection was rightly rejected by the Tribunal and wrongly accepted by the High Court.
7. As far as espousal is concerned there is no particular form prescribed to effect such espousal. Doubtless, the Union must normally express itself in the form of a resolution which should be proved if it is in issue. However proof of support by the Union may also be available aliunde. It would depend upon the facts of each case. The Tribunal had addressed its mind to the question, appreciated the evidence both oral and documentary and found that the Union had espoused the appellant’s cause.
8. The Division Bench misapplied the principles of judicial review under Article 226 in interfering with the decision. It was not a question of there being no evidence of espousal before the Industrial Tribunal. There was evidence which was considered by the Tribunal in coming to the conclusion that the appellant’s cause had been espoused by the Union. The High Court should not have upset this finding without holding that the conclusion was irrational or perverse. The conclusion reached by the High Court is therefore unsustainable.
9. For all these reasons the decision of the High Court cannot stand and must be set aside.
10. Learned counsel appearing for the respondent then submitted that the matter may be remanded back to the Division Bench of the High Court as the Court had not considered the other arguments raised by the respondent while impugning the award of the Industrial Tribunal. It appears from the impugned decision that the only other ground raised by the respondent in the Writ Appeal was that the grievance of the appellant had been belatedly raised. We have found from the decision of the Industrial Tribunal that no such contention had been raised by the respondent before the Tribunal at all. We are not prepared to allow the respondent to raise the issue before the High Court.
11. The respondent finally submitted that pursuant to the disciplinary proceedings initiated against the appellant in the meanwhile, the appellant had been dismissed from service and that the order of dismissal was the subject matter of a separate industrial dispute. We are not concerned with the proprietary of the order of dismissal except to the extent that the appellant cannot obviously be granted actual promotion today. Nevertheless, he would be entitled to the monetary benefits of promotion pursuant to the award of the Industrial Tribunal which is the subject matter of these proceedings uptil the date of his dismissal. Any further relief that the appellant may be entitled to must of necessity abide by the final disposal of the industrial dispute relating to the order of dismissal which is said to be pending.
12. We therefore allow the appeal and set aside the decision of the High Court. The award of the Industrial Tribunal is confirmed subject to the modification that the promotion granted by the award will be given effect to notionally for the period as indicated by the award up to the date of the appellant’s dismissal from service. Reliefs in respect of the period subsequent to the order of dismissal shall be subject to the outcome of the pending industrial dispute relating to the termination of the appellant’s services. If the termination is ultimately upheld, the appellant will be entitled only to the reliefs granted by us today. If on the other hand the termination is set aside, the appellant will be entitled to promotion as granted by the award.
Appeal allowed.
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