1. Heard Sri Babu Lal Ram holding brief of Sri Devendra Kumar, learned counsel for the petitioner and Sri Chandra Bhan Gupta, learned counsel appearing for the respondent no. 2.
2. The present petition has been filed seeking to challenge the award dated 18.08.2015 passed by the Labour Court (First) U.P. Ghaziabad in Adjudication Case No. 302/86 and also the order of the same date passed upon an application under Section 6-F of the U.P. Industrial Disputes Act, 1947 (in short 'U.P.I.D.Act, 1947'), which was registered as Misc. Case No. 15/96.
3. While considering the reference which had been made with regard to the legality/validity of the termination of the workman (petitioner herein) with effect from 10.10.1985, the Labour Court, upon taking notice of the fact that the workman had joined his duties on 12.9.1996 came to the conclusion that there did not exist any dispute regarding which the reference had been made. Thereafter, considering the grievance of the workman that he had not been paid his wages from September, 1985 upto 10.10.1985, the Labour Court held that the workman was entitled for being paid wages for the said period and no other relief was granted.
4. The application under Section 6-F of the U.P.I.D.Act, 1947 was rejected by the Labour Court vide order dated 18.08.2015 after taking into consideration the fact that the workman was continued to be shown on the rolls of the employer, and that the workman had not been able to prove the fact that his conditions of service were changed during pendency of the proceedings.
5. Learned counsel for the petitioner made a feeble attempt to assail the award by raising a grievance with regard to his alleged termination dated 10.10.1985 relating to which the reference had been made. However, he did not controvert the fact that the workman had joined his duties on 12.9.1996 and as a consequence thereof there existed no dispute with regard to his termination relating to which the reference had been made.
6. The learned counsel appearing for the respondent no. 2-employer submitted that it was the specific stand of the employer before the Labour Court that the services of the workman were never terminated from 10.10.1985, as stated in the reference order, and that the management had made an offer to the workman concerned to report for duty. It was also pointed out that the name of the workman was continued to be shown in the attendance register and he was on rolls of the factory even after the alleged date of termination i.e. 10.10.1985, and that the workman joined his duties on 12.9.1996 and started working. It was accordingly submitted that workman having never been terminated and subsequently having admittedly joined his duties there existed no dispute with regard to his termination which required adjudication, and in view of the same the Labour Court had rightly passed the award.
7. Heard learned counsel for the parties and perused the record.
8. The core issue in the present petition revolves around the interpretation of the term 'industrial dispute'.
9. The term 'industrial dispute' as defined under Section 2 (l) of the U.P.I.D.Act, 1947 which is in similar terms as the definition contained under Section 2(k) of the Industrial Disputes Act, 1947 (in short 'I.D.Act, 1947') essentially means any dispute or difference between employers 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 employment or with the conditions of labour, of any person.
10. As per Section 2-A of the I.D.Act, 1947 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 is deemed to be an industrial dispute.
11. The ambit and scope of the meaning of the term 'industrial dispute' came up for consideration in the case of Narendra Kumar Sen and others Vs. All India Industrial Disputes (Labour Appellate) Tribunal and others1, and upon taking into view the definition of the term under Section 2(k) of the I.D.Act, 1947 it was held that in order that a controversy between workmen and employers can become an industrial dispute, two conditions are necessary: first, it must be a dispute; and second, it must be an industrial dispute. The observations made in the judgment are as under :-
"(5) Now, in order that a controversy between workmen & employers can become an industrial dispute, two conditions are necessary. It must be a dispute and it must be an industrial dispute. There is no difficulty in understanding what "industrial dispute" is because it is clearly defined in Section 2(k). A controversy which is connected with the employment or non-employment or the terms of employment or with the conditions of labour is an industrial controversy. But it is not enough that it should be an industrial controversy; it must be a dispute; and in my opinion it is not every controversy or every difference of opinion between workmen and employers which is constituted a dispute or difference within the meaning of Section 2(k). A workman may have ideological differences with his employer; a workman may feel sympathetic consideration for an employee in his own industry or in other industry; a workman may feel seriously agitated about the conditions of labour outside our own country; but It is absurd to suggest that any of these factors would entitle a workman to raise an industrial dispute within the meaning of Section 2(k). The dispute contemplated by Section 2(k) is a controversy in which the workman is directly and substantially interested. It must also be a grievance felt by the workman which the employer is in a position to remedy. Both the conditions must be present; it must be a grievance of the workman himself; it must be a grievance which the employer as an employer is in a position to remedy or set right."
12. The test with regard to existence of an industrial dispute was laid down in the aforementioned judgment of Narendra Kumar Sen and others, in the following terms :-
"7...Therefore, when Section 2(k) speaks of the employment or non-employment or the terms of employment or the conditions of labour of any person, it can only mean the employment or non-employment or the terms of employment or the conditions of labour of only those persons in the employment or non-employment or the terms of employment or with the conditions of labour of whom the workmen themselves are directly and substantially interested. If the workmen have no direct or substantial interest in the employment or non-employment of a person or in his term of employment or his conditions of labour, then an industrial dispute cannot arise with regard to such person.."
13. The scope and effect of the definition clause in Section 2(k) of the I.D.Act, 1947 again fell for consideration in the case of Workmen of Dimakuchi Tea Estate Vs. Management of Dimakuchi Tea Estate2, and upon analyzing the definition of the term 'industrial dispute' it was held that in order to fall within the scope of the definition under Section 2(k), the following conditions must be satisfied: (i) there must be a dispute or difference; (ii) the dispute or difference must be between employers and employers, or between employers and workmen, or between workmen and workmen; and (iii) the dispute or difference must be connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. The relevant observations made in the judgment are as follows :-
"8....If we analyse the definition clause, it falls easily and naturally into three parts: first, there must be a dispute or difference; second, the dispute or difference must be between employers and employers, or between employers and workmen or between workmen and workmen; third, the dispute or difference must be connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person..."
14. In the abovementioned case of Workmen of Dimakuchi Tea Estate after referring to 'Maxwell on the Interpretation of Statutes3' and also examining the object of the I.D.Act, 1947 and its salient features, it was observed as follows :
"9...the definition clause must be read in the context of the subject matter and scheme of the Act, and consistently with the objects and other provisions of the Act. It is well settled that "the words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained."
(Maxwell, Interpretation of Statutes, 9th Edition, p. 55).
10. It is necessary, therefore, to take the Act as a whole and examine its salient provisions. The long title shows that the object of the Act is "to make provision for the investigation and settlement of industrial disputes, and for certain other purposes." The preamble states the same object..
........
14..It is obvious that a dispute between employers and employers, employers and workmen, or between workmen and workmen must be a real dispute capable of settlement or adjudication by directing one of the parties to the dispute to give necessary relief to the other. It is also obvious that the parties to the dispute must be directly or substantially interested therein, so that if workmen raise a dispute, it must relate to the establishment or part of establishment in which they are employed..."
15. The aforementioned view that the term 'industrial dispute' as defined under Section 2(k) of the I.D.Act, 1947 means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen which is concerned with the employment or non-employment or the terms of employment or with the conditions of labour, of any person, was reiterated in Workmen of M/s Dharam Pal Prem Chand Vs. M/s. Dharam Pal Prem Chand4 and J.H.Jadhav Vs. Forbes Gokak Ltd5.
16. The meaning of the term 'industrial dispute' as defined under Section 2(k) of the I.D.Act, 1947 again came up for consideration in the case of Shambu Nath Goyal vs Bank Of Baroda, Jullundur6, wherein it was held that the the key words in the definition of the term industrial dispute are 'dispute' or 'difference' and the existence of an industrial dispute pre-supposes a dispute or difference between the parties as contemplated by the definition. The relevant observations made in the judgment are as follows :-
"5. A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the dispute or difference is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service because Section 22 forbids going on strike without giving a strike notice..."
17. While discussing the meaning of the words 'dispute' and 'difference' in the aforementioned case of Shambu Nath Goyal (supra) the judgment in the case of Beetham Vs. Trinidad Cement Ltd.7, was referred to and the observations made by Lord Denning in the context of the definition of the term 'trade dispute' under Section 2 (1) of the Trade Disputes (Arbitration and Inquiry) Ordinance (Laws of Trinidad and Tobago, 1950) were also extracted and it was stated as follows :-
"5.....The key words in the definition of industrial dispute are 'dispute' or 'difference'. What is the connotation of these two words. In Beetham v. Trinidad Cement Ltd, (1960) 1 All ER 274 at p. 279, Lord Denning while examining the definition of expression 'trade dispute' in Section 2(1) of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidad observed:
"By definition a ''trade dispute' exists whenever a ''difference' exists; and a difference can exist long before the parties became locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should be sparring for an opening."
6. Thus the term 'industrial dispute' connotes a real and substantial difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section."
18. The definition of the term 'industrial dispute' as under Section 2(k) of the I.D.Act, 1947 and also the meaning of the word 'dispute' as defined in the Black's Law Dictionary and also Advance Law Lexicon by P. Ramanatha Aiyar, were referred to in the case of ANZ Grindlays Bank Ltd. Vs. Union of India and others8, and it was observed as follows:-
"11...Section 2(k) of the Act defines "industrial dispute" and it means any dispute or difference between employers 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 employment or with the conditions of labour, of any person. The definition uses the word "dispute". The dictionary meaning of the word "dispute" is: to contend any argument; argue for or against something asserted or maintained. In Black's Law Dictionary the meaning of the word "dispute" is: a conflict or controversy, specially one that has given rise to a particular lawsuit. In Advanced Law Lexicon by P. Ramanatha Aiyar the meaning given is: claim asserted by one party and denied by the other, be the claim false or true; the term "dispute" in its wider sense may mean the wranglings or quarrels between the parties, one party asserting and the other denying the liability. In Gujarat State Coop. Land Development Bank Ltd. v. P.R. Mankad [(1979) 3 SCC 123 : 1979 SCC (L&S) 225] it was held that the term "dispute" means a controversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other."
19. A similar view was taken in the case of Prabhakar Vs. Joint Director, Sericulture Department, and another9, and after considering the definition of the term under Section 2(k) and also Section 2-A of the I.D.Act, 1947, it was held that the term 'industrial dispute' connotes a real and substantial difference having some element of persistency which is likely to endanger the industrial peace. The relevant observations made in the judgment are as follows :
"31. Section 2(k) of the IDA defines 'industrial dispute' and it reads as under:
"2.(k) 'industrial dispute' means any dispute or difference between employers 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 employment or with the conditions of labour, of any person;"
32. As per Section 2-A dispute relating to discharge, dismissal, retrenchment or termination of an individual are also deemed as industrial dispute and, therefore, an individual is given right to raise these disputes.
33. The term 'industrial dispute' connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. The expression 'dispute or difference' as used in the definition, therefore, means a controversy fairly definite and of real substance, connected with the employment or non-employment or with the terms of employment or the conditions of labour of any person, and is one in which the contesting parties are directly interested in maintaining the respective contentions.
34. To understand the meaning of the word 'dispute', it would be appropriate to start with the grammatical or dictionary meaning of the term:
"'Dispute': to argue about, to contend for, to oppose by argument, to call in question - to argue or debate (with, about or over) - a contest with words; an argument; a debate; a quarrel;"
35. Black's Law Dictionary, 5th Edn., p. 424 defines "dispute" as under:
"Dispute.--A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined."
36. Thus, a dispute or difference arises when demand is made by one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Hence an "industrial dispute" cannot be said to exist until and unless the demand is made by the workmen and it has been rejected by the employer..."
20. Reference may also be had to the judgment in the case of Conway Vs. Wade10, wherein the words 'contemplation or furtherance of a trade dispute', fell for consideration in the context of the Trade Disputes Act, 1906, in which the expression 'trade dispute' had been defined under sub-section (3) of Section 5 as meaning any dispute 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 conditions of labour, of any person, and in the context of the aforementioned definition, it was observed as follows :-
"'Trade dispute' is a familiar phrase in earlier Acts of Parliament, and is defined in this Act. I do not know that the definition is of much assistance. If this section is to apply there must be a dispute, however the subject-matter of it be defined. A mere personal quarrel or a grumbling or an agitation will not suffice. It must be something fairly definite and of real substance."
21. In a similar set of facts, as in the present case, in Ram Singh Vs. J.K.Jute Mills Co.Ltd. and others11, where the employer, in their written statement, had categorically stated that they had not terminated the services of the concerned workman and the name of the workman was continuing on the rolls of the employer, it was held that there was no necessity of adjudicating whether his services were terminated or not and whether the termination is legal and justified or not. The relevant observations made in the judgment are as follows :-
"2. The following dispute was referred to the labour court for adjudication :
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3. The parties have exchanged their pleadings and adduced evidence before the labour court. The employer, in their written statement, have categorically stated that they have not terminated the services of the concerned workman and no order terminating the services of the concerned workman was passed. The name of the concerned workman is still on the rolls of the employer. In this view of the matter, the concerned workman is not entitled for any relief.
.......
8....in view of the admitted facts that the employer themselves have admitted that they have not terminated the services of the concerned workman and his name is still continuing on the rolls of the employer, in my opinion, the labour court has travelled beyond the pleadings of the parties and arrived at the conclusion referred to above. Once the employer have admitted that they have not terminated the services of the concerned workman, the labour court should have stopped there and answered the reference that since, it is the employers' own case that they have not terminated the services of the concerned workman, therefore, there is no necessity of adjudicating whether his services were terminated or not and whether the termination is legal and justified or not? "
22. It is thus seen that the term 'industrial dispute' connotes a real and substantial difference having some element of persistency which is likely to endanger industrial peace. The essence of an industrial dispute is disagreement. In order to constitute a dispute there must be some disagreement between workmen and employer who stand in some industrial relationship upon some matter that affects or arises out of that relationship. It must be concerned with an industry and the difference between the parties must be concerned in some way with the 'workmen' as defined in the Act.
23. The expression 'dispute' or 'difference' as used under the statutory definition of the term 'industrial dispute' means a controversy which is fairly definite and of real substance and being connected with the terms of employment or non-employment or with the conditions of labour or dismissal etc., and is one in which the contesting parties are directly and substantially interested in maintaining the respective contentions. It must be a grievance felt by the workmen which the employer is in a position to remedy or set right. The dispute in order to come within the definition of 'industrial dispute' must be capable of being made the subject of an award, and therefore, the claim made by one party to the dispute must be one which the other party has power to grant. The key words in the definition of the term 'industrial dispute' are 'dispute' or 'difference'. The existence of an 'industrial dispute' thus pre-supposes the existence of a 'dispute' or 'difference' as a condition precedent.
24. In the facts of the present case in the absence of any real and substantial difference existing between the parties which could be said to be connected with the employment or non-employment, or with regard to discharge, dismissal, retrenchment or termination there could not be said to be any industrial dispute subsisting, which required adjudication, and the award passed by the Labour Court which is sought to be challenged in the present petition, cannot be faulted with.
25. The Labour Court having held that there existed no subsisting industrial dispute and the workman having not been able to prove the fact that the employer had contravened the provisions of Section 6-E during the pendency of the proceedings before the Labour Court, the rejection of the application under Section 6-F of the U.P.I.D.Act, 1947, also cannot be held to be improper.
26. No other point was argued by the counsel for the petitioner.
27. Counsel for the petitioner has not been able to point out any material error or illegality in the award of the Labour Court dated 18.08.2015 and also the order of the same date passed upon an application under Section 6-F of the U.P.I.D.Act, 1947.
28. The writ petition lacks merit and is accordingly dismissed.
Order Date :- 30.8.2019 Pratima (Dr.Y.K.Srivastava,J.)