IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION NO.59444/2016 (L RES) BETWEEN :
TATA MARCOPOLO MOTORS LIMITED, BELUR INDUSTRIAL AREA, GARAG ROAD, MUMMIGATTI POST, DHARWAD-580011, REPD. BY SHRI B.V.PRASAD, HEAD HUMAN RESOURCES & FACTORY MANAGER. ... PETITIONER (BY SRI. S.N.MURTHY FOR SRI. SOMASHEKAR, ADV.) AND 1. THE PRINCIPAL SECRETARY-LABOUR GOVERNMENT OF KARNATAKA 4TH FLOOR, VIKAS SOUDHA, BANGALORE-560001.
2. KRANTIKARI KAMGAR UNION 180-C, 1ST FLOOR, DHARAVI KOLIWADA, J.J.KENI LANE, DHARAVI ROAD, MUMBAI-400017, REPD. BY ITS SECRETARY. ... RESPONDENTS (BY SMT. H.C.KAVITA, HCGP FOR R1, SRI. SANJAY SINGHVI, SR. COUNSEL FOR SRI. GIRISH.G.N, ADV. FOR R2) THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER OF REFERENCE ISSUED BY R-1 DATED 20.10.2016 AT ANNEX-M TO THIS PETITION ETC.
THIS WP COMING ON FOR ‘DICTATING ORDERS’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned Senior Counsel Sri. S. N. Murthy on behalf of the petitioner-Company, Sri. Sanjay Singhvi, Sr. Counsel on behalf of the second respondent-Union and learned HCGP on behalf of the first respondent-State.
2. The brief facts necessary for determination of the lis that has arisen between the parties are as follows:-
It is the case of the petitioner that it is a factory engaged in the manufacture and sale of fully built buses at its factory established at Belur Industrial Area, Dharwad employing a workforce of around 3000 and the said workforce includes women and foreign nationals as the products, apart from being sold to State Transport Corporation, are also being exported to various countries across the globe.
3. That a group of employees/workmen have formed a union going by the name of Tata Karmikara Sangha and have also been accorded registration by the competent authority under the Trade Union Act, 1926 and that the management has been discussing with the said union with regard to issues pertaining to the workmen and that the said union has been successful in amicably resolving the disputes.
4. While matter stood thus, the second respondent claiming to be a registered union going by the name of ‘Krantikari Kamgar Union’ laid a claim that a large section of the workforce have identified and enrolled themselves as its members. Therefore, demanded that it be invited to negotiate and resolve issues pertaining to the workmen in the factory. Proceeding further, the second respondent, under letter dated 05.10.2015, levelled false allegations against the management and later followed it up with a charter of demands dated 26.03.2016 vide Annexure-C to the writ petition.
5. Pursuant to the charter of demands, the Deputy Labour Commissioner, Belgaum, invited the parties, more particularly, the petitioner and second respondent, for a joint meeting in order to conciliate between the parties and enable an amicable resolution. In reply, the petitioner under letter dated 17.06.2016, raised a threshold contention contending that the second respondent-union had no locus-standi to represent the employee/workman of the petitioner’s establishment. Despite the objection raised regarding the locus-standi of the second respondent- union, the Deputy Labour Commissioner issued a third conciliation meeting notice. In reply to which the petitioner submitted one more representation vide Annexure-H to the writ petition, reiterating its objection with regard to the locus-standi of the second respondent-union to canvass the cause of the workmen employed in the petitioner’s establishment. Petitioner further contended that the issue of locus-standi of the second respondent needs to be resolved as a Preliminary Issue. The Deputy Labour Commissioner vide report dated 03.09.2016 submitted a report, reporting the failure of the conciliation process.
6. The petitioner aggrieved, submitted its objections to the failure report contending that the Labour Conciliation Officer erred in submitting a failure report even without entering upon and deciding the issue of locus-standi of the second respondent-union claiming right to represent the workforce of the petitioner’s establishment.
7. The State Government, acting on the conciliation failure report, by its proceedings bearing No.ka.e.744.idg.2016.adaka.11 pages dated 20.10.2016 referred two issues for adjudication by the Industrial Tribunal, Hubli, by invoking the provisions of Section 10(1)(d) of the Industrial Disputes Act, 1947 (Hereinafter referred to as ‘the ID Act’ for short). The points of reference required to be adjudicated and answered by the Industrial Tribunal were ;
1. Whether the Krantikari Kamgar Union C/o Yellappa Gowda Metti, Hoysalapura, Chirantimatha Garden, Ram Rahim Colony, 2nd Cross, Dharwad possesses the right and locus-standi to canvass the demands of the petitioner’s workmen?
2. Whether the charter of demands raised by the aforesaid union on 26.03.2016 and 19.04.2016 are in consonance with law?
It is this proceeding drawn up by the first respondent- State that has resulted in the impetus for the present litigation.
8. The second respondent contends that it is a duly registered trade union constituted with the object of organising unity amongst workers employed in the industries listed in its constitution. It is contended that the second respondent is a General Trade Union and is duly registered with the competent authority thereby enabling it to carry out the trade union activities permitted by the Act of 1926.
9. It is further contended that out of 1281 permanent workers employed by the petitioner’s establishment, 1187 workers are registered with it as members of its Union. In other words, the second respondent claims that nearly 92% of the petitioner’s workmen are its registered members. That the petitioner’s establishment commenced manufacture of commercial products in the year 2009. That during the initial periods the workers were made to work for more than 8 hours every day, but in return no overtime wages nor canteen facilities nor proper transportation facilities were extended to the workmen. That workers were coerced to work for 11 to 13 days continuously without providing mandatory weekly off and protestors were humiliated, harassed and victimised and thereby, were coerced to quit and leave the company. That the alleged wage increase is a pittance and determined unilaterally without there being any bilateral discussions and in utter violation of all norms of collective bargaining and protests were met with the threat of lock- out and dismissal.
10. That the workers were forced to give undated resignation letters which was used as a handle to eject workers who proved uncomfortable to the management. That even as on date the petitioner’s establishment is still holding about 50 such undated resignation letters and it is because of this oppressive attitude, the workers decided to join the second respondent-Union. That in April 2015, the petitioner unilaterally announced wage increase which was not accepted by the workers and they protested the same, resulting in the management, enrolling the help of the local police, to coerce the workers to accept the wage increase.
11. That about 30 to 50 workers disenchanted with the state of affairs, tendered resignations since January 2015 and in June 2015 the remaining workers opted to enrol themselves as members of the second respondent- union. The petitioner establishment enraged by this development and in retaliation, issued orders of termination/discharge to the workers. The petitioner establishment used the concept of deputation as a tool to victimise the workers.
12. That the second respondent by its letter dated 19.09.2015 intimated the petitioner about the fact of its workmen having enrolled themselves as its members and also intimated the petitioner detailing the names of the committee members of the units, unit office bearers and protected workers. It is stated that on receipt of this letter, one M.S.R.K. Prasad, Head of the Human Resource Department, called the union committee and questioned them about the same and thereafter, he along with other officers visited the houses of the committee members and threatened the family members with dire consequences. That they were threatened with termination of services and started to intensify the harassment and victimisation of the workers, and further used transfer as a weapon to force the workers to leave the second respondent—union. On 09.10.2015, the petitioner-establishment issued orders, discharging two leading committee members. It is further stated that after the letter dated 19.09.2015, the petitioner’s company has sponsored a rival union called Tata Marcopolo Karmikara Sangha. That the application for registration was made only on 14.10.2015 and registration was completed on 21.10.2015. That the completion of the registration process and issuance of registration certificate within extremely short span of 7 days was possible only because of the clout enjoyed by the petitioner.
13. It is alleged that on 26.10.2015 a meeting between the said Mr. M.S.R.K. Prasad and union committee members was organised and that the M.SR.K. Prasad was supposed to be accompanied by his legal advisor. But, he got invited the local police and politicians and local villagers to attend the meeting. On the other hand, the Central office bearer of the second respondent union was not permitted to participate in the discussions.
14. It is also alleged that one police Sub-Inspector- Murugesh and former MLA Seema Masuthi were also invited to the discussion. During the meeting the only agenda put-forth by the petitioner was that the worker who had enrolled themselves with the second respondent union must resign and join the union sponsored by the management.
15. It is further pointed out that the settlement by the petitioner’s sponsored Union was signed after issuance of notice by the Conciliation Officer. That the same was protested by the second respondent by way of representation dated 20.6.2016 addressed to the Conciliation Officer i.e. the Deputy Commissioner of Labour, Belgaum wherein it is stated that during the pendency of the Conciliation proceedings, the petitioner has drafted and executed the settlement with the sponsored Union with the intention of defeating the conciliation process.
16. It is also submitted that the petitioner has taken every step to vitiate and to prevent the participation of the second respondent-Trade Union. In fact, the members of the second respondent-Union could attend the meeting only after obtaining orders from this Court.
17. In reply to the above allegations, the petitioner has filed a detailed rejoinder statement denying the allegations. The counter allegations are in the realm of facts to be demonstrated and adjudicated by an appropriate authority. This Court exercising jurisdiction under Article 226 of the Constitution of India, at this juncture, would hesitate to adjudicate the same.
18. It is relevant and pertinent to note that the challenge to reference order made under the provisions of Section 10(1)(d) of the ID Act, referring the dispute to the Jurisdictional Tribunal for adjudication, is not based on the grounds of want of competency or any other jurisdictional issue.
19. Learned Senior Counsel Sri. S.N.Murthy appearing on behalf of Sri. Somashekar, counsel for the petitioner would contend that reference is bad as the second respondent-Union has no right to represent the workmen/employees of the petitioner-establishment. He would contend that after the amendment to Section 4 of the Trade Union Act, by way of insertion of the proviso vide the Amendment Act. 31 of 2001, there can no longer be a general trade union as was permissible under the law prior to the amendment and he would contend that the Central Government by the amendment desired to have an industry based union and hence the provision has been introduced into the Act with retrospective effect. He would draw the attention of the Court to the Constitution and Rules of the second respondent-Union and would contend that the second respondent-Union purports to represent any number of industries and services. In short it is proposed as a General Trade Union.
The learned Senior Counsel would further contend that the impugned order of reference has to go as it is vitiated by non-application of mind. He would contend that the respondent-State failed in not noticing that the State could not have acted on the failure report, as the Conciliator has omitted to determine that aspect of locus standi of the second respondent to represent the employees of the petitioner-establishment.
He would lastly contend that the very registration of the second respondent-Union is illegal as it is contrary to the spirit of the Amendment Act 31 of 2001, by which amendment the legislature sought to do away with general trade unions. He would contend that the amendment came into force from 9.1.2002 and the registration of the second respondent-Union was on 15.11.2011 i.e. subsequent to the coming into force of the amended provisions and hence the Amendment Act 2001 as well as the very registration itself is illegal. He would contend that the Trade Union Act, 1926 does not visualize the concept of two level functionaries i.e. at the Central Level Office Bearers and other being the Unit Level Office Bearers.
He would contend that after the commencement of the dispute, some of the employees, who are really the members of the second respondent-Union, have now proceeded to form another Union under the name and style of Tata Marco Polo Kranthikari Karmika Sangha Union and the said Union has also submitted an application for registration under the Trade Union Act. It is contended that all the office bearers of the said Union were earlier the office bearers of the so called unit-Level of the 2nd respondent. Hence he would submit that the second respondent had no locus standi to raise a dispute or issue a charter of demands and hence on this ground also the impugned order for reference is bad as it is passed on the assumption of existence of a dispute raised by the second respondent-Union.
20. Per contra, learned Senior Counsel appearing on behalf of the second respondent would contend that conciliation talks never have fruitful endings and mostly result in dead-lock or get bogged down on preliminary issues, as in the instant case.
The learned Senior Counsel would draw the attention of this Court to the provisions of Section 2K of the ID Act which defines “industrial dispute” and he would thereafter draw the attention to the provisions of Section 10(1)(d) of ID Act, and he would submit that the reference for adjudication can be not only in respect of an existing issue but also in respect of an issue which the state may foresee as occurring in the near future.
He would contend that the very reading of the provisions of Section 10(1) would suffice to demonstrate the illegality of the impugned proceedings. He would further contend that the interpretation placed by the learned Senior Counsel appearing on behalf of the petitioner that the amendment has prohibited the functioning of the General Trade Union is without substance. He would contend that singular includes the plural and in this regard he would rely on Section 14 of the General Clauses Act to draw sustenance for the said contention. He would submit that the ‘industry’ also include ‘industries’ and accordingly has to be read in the plural.
21. The contentious provisions involved herein is Section 4 of the Trade Union Act 1926. The same is reproduced for the sake of convenience. Section 4 prior to amendment read as follows :-
Mode of registration.
4. Mode of registration. – [(1)] Any seven or more members of a Trade Union may, by subscribing their names to the rules of the Trade Union and by otherwise complying with the provisions of this Act with respect to registration, apply for registration of the Trade Union under this Act.
Thereafter the Central Government while amending the Trade Union Amendment Act, 2001 by Act 31 of 2001 was pleased to amend the provisions of Section 4 by way of insertion of the two provisos which read as follows :-
4. Mode of registration.-[(1)] Any seven or more members of a Trade Union may, by subscribing their names to the rules of the Trade Union and by otherwise complying with the provisions of this Act with respect to registration, apply for registration of the Trade Union under this Act:
Provided that no Trade Union of workmen shall be registered unless at least ten per cent. or one hundred of the workmen, whichever is less, engaged or employed in the establishment or industry with which it is connected are the members of such Trade Union on the date of making of application for registration:
Provided further that no Trade Union of workmen shall be registered unless it has on the date of making application not less than seven persons as its members, who are workmen engaged or employed in the establishment or industry with which it is connected.
22. A reading of the provisos to Section 4 would demonstrate that prior to the amendment the only prescription for seeking registration was that there ought to be 7 or more members who were willing to subscribe to the Rules of the Union and were further willing to comply with the provisions of the Act with regard to registration. Pursuant to the amended provision, the first proviso added a rider in the nature of a threshold bar for registration. While prescribing the minimum number of members to entitle them for registration it stipulated that it ought to be 10% of the workmen employed or engaged in an establishment or industry with which it is connected or atleast 100 of the workman of the establishment of industry with which it is connected are on its rolls as members. It further prescribes that the strength could be 10% or 100 which ever is lesser.
23. The second proviso further proscribes that no Trade Union of workmen shall be registered unless on the date of making the application it has not less than 7 persons as its members who are workmen engaged or employed in the establishment or industry with which it is connected.
24. The implication being that atleast 7 persons who are members ought to be workmen engaged or employed in the establishment or industry with which it is connected.
25. The perceptible distinction between the first proviso and the second proviso is that the mandate regarding minimum requirement of workmen in the first proviso is relatable to the date of making of the application and the stipulation in the second proviso is with regard to the date of actual registration, i.e, the date on which registration is actually accorded to and alludes to fact that the said 7 (seven) members must be employed in the establishment it desires to represent. The intended applicant/trade union ought to comply with the requirement in the first proviso as on the date of making an application, failing which, the applicant would be disentitled for consideration of his application.
26. The second proviso mandates that the minimum requirement ought to be complied and the same ought to be ensured by the Registering Authority prior to according registration.
27. The learned Senior Counsel Sri. S.N.Murthy would submit that 10% or 100 workman mandated by the first proviso ought to be read in conjunction with the place, establishment or industry with which it is connected and he would submit that the intention of the legislature is that the proposed Union ought to have atleast 10% or 100 of the workmen from the very same unit/establishment and cannot be the read as hailing from the very same industry and it cannot be a collection of individuals from across a spectrum of industries. He would contend that the proviso cannot be given a liberal construction and it ought to be read and understood as imposing a restriction requiring forming of an association comprising of members from the very same trade or industry as it is contrary to the object of the Amending Act.
28. The Learned Senior Counsel places reliance on the ruling of the Apex Court rendered in the case of R.G.D’Souza. - vs – Poona Employees Union reported in (2015) 2 Supreme Court Cases 526.
29. On a perusal of the above ruling it is discernible that there the Apex Court was dealing with the issue of cancellation of the registration of a trade union on the premise of non filing of necessary documents in compliance with the Rules and Regulations and obtaining registration certification by mistake/fraud. The Court, in fact, therein held that the amendment to Section 4 was inapplicable to those facts and circumstances as the said Union had come into existence prior to coming into force of the amendment; while holding so it was pleased to uphold the considered view of the High Court that the word ‘any’ in the application form and Rules of second respondent Trade Union framed under Section 6 could mean that object of respondent Trade Union was to operate in all types of industries in Pune District and further held that the necessity of specifying or disclosing nature of industry/industries in which the Trade Union intends to operate and function does not render any finding with regard to the implications of the amended law.
30. The learned Senior Counsel has also placed reliance on the ruling of the Apex court reported in 2000(1) LLJ Page 247 (AIR 2000 SC 469) to canvass the maintainability of the writ petition even as against an order of reference. Therein the Apex Court after a detailed examination of the facts of the said case was pleased to hold at paragraph 25 as follows :-
25. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is no industrial dispute and none apprehended which could be subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the industrial tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended appropriate government lacks power make any reference. A settlement of dispute between the parties themselves is to be preferred, where it could be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace then an award. Settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them.
When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements it could be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the Conciliation Officer must be fair and reasonable. A settlement which is sought to be impugned has to be scanned and scrutinized. Sub-sections (1) and (3) of section 18 divide settlements into two categories, namely, (1) those arrived at outside the conciliation proceedings and (2) those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all the parties to the industrial disputes, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. A settlement arrived at in the course of conciliation proceedings with a recognized majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. Recognized union having majority of members is expected to protect the legitimate interest of labour and enter into a settlement in the best interest of labour. This is with the object to uphold the sanctity of settlement reached with the active assistance of the Conciliation Officer and to discourage an individual employee or minority union from scuttling the settlement. When a settlement is arrived at during the conciliation proceedings is binding on the members of the workers' union as laid down by section 18(3) (d) of the Act . It would ipso facto bind all the existing workmen who are all parties to the industrial dispute and who may not be members of Unions that are signatories to such settlement under section 12(3) of the Act. Act is based on the principle of collective bargaining for resolving Industrial disputes and for maintaining industrial peace. "This principle of industrial democracy is the bedrock of the Act", as pointed out in the case of P. Virudhanchalam v. Management of Lotus Mills (1998) 1 SCC 650 :
(1998 AIR SCW 145 : AIR 1998 SC 554 : 1998 Lab IC 834). In all these negotiations based on collective bargaining individual workman necessarily recedes to the background. Settlements will encompass all the disputes existing at the time of the settlement except those specifically left out.
31. Further elaborating on the said contention, he would contend that as the registration of the second respondent-Union is contrary to the provisions of Section 4, it must conclude that the alleged disputes raised by the Union is not a dispute and in these circumstances, the failure of the Conciliation Court to adjudicate the locus standi, tantamounts to abdication and the State Government ought to have rejected the same and it ought not to have acted upon the same and hold that there exists a dispute.
He would further contend that in the absence of a dispute or an apprehended dispute, no power is vested in the State Government to invoke the provisions of Section 10(1) and make a reference to the Industrial Tribunal.
He would contend that the registration is a nullity in law and is nonest and hence there being no other material to demonstrate a dispute or to demonstrate the apprehension of a dispute arising, the reference is bad in law and he would pray that the impugned proceedings of the Government making reference requires to be interfered with and set aside.
32. Per contra, the learned Senior Counsel appearing on behalf of the respondent No.2-Trade Union would contend that the Government is vested with the power to make a reference suo motu even without there being a Charter of Demands. If the Government is of the opinion that either an industrial dispute existed or is apprehended, it may any time order in writing or make a reference of the said dispute or either promote a settlement for adjudication by the Tribunal.
33. He would draw the attention of this Court to Section 10(1) (d) of the Act which reads as follows :-
10(1)(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
34. From a bare reading of the provision there appears to be substance and merit in the contention of the learned Senior Counsel for respondent No.2.
35. The provision is so worded, whereby one can safely infer that the only pre-requisite entitling the Government to make a reference is that it ought to form an opinion about the existence of an industrial dispute or arrive at a conclusion that the industrial dispute is apprehended. In such circumstance, the State Government is empowered to make a reference to the appropriate Labour Court for adjudication of the same.
36. In this regard the learned Senior counsel would place reliance on the ruling of the Apex Court rendered in the case of STATE OF BIHAR – vs - KRIPA SHANKAR JAISWAL AIR 1961 SC 304, wherein the Hon’ble Apex Court has held in paragraph 5 as follows :-.
It would be an erroneous view if it were said that for a dispute to constitute an Industrial dispute it is a requisite condition that it should be sponsored by a recognized union or that all the workmen of an industrial establishment should be parties to it. A dispute becomes an industrial dispute even where it is sponsored by a union which is not registered as in the instant case or where the dispute raised is by some only of the workmen because in either case the matter falls within Section 18(3) (a) and (d) of the Act.
37. The learned Senior Counsel would also place reliance on another ruling of the Hon’ble Apex Court rendered in the case of NEWSPAPERS LTD., ALLAHABAD – vs - U.P.STATE INDUSTRIAL TRIBUNAL & OTHERS reported in AIR 1960 SC 1328 wherein in paragraph 4, the Hon’ble Apex Court was pleased to hold as follows :-
Then it was urged that the association which sponsored the case of Respondents 3 to 5 was an unregistered body and that made the reference invalid. Both the courts have held, and rightly, that it is not necessary that a registered body should sponsor a workman’s case to make it an industrial dispute. Once it is shown that a body of workmen, either acting through their union or otherwise had sponsored a workman’s case it becomes an industrial dispute.
38. Enlarging upon the said submission, he would contend that the case of the petitioner that the reference is bad on account of the fact that the same was sponsored by a Trade Union, whose jurisdiction is questionable, is without substance in the light of the law laid down by the Hon’ble Apex Court in the case of MANAGER, HOTEL IMPERIAL, NEW DELHI – vs - CHIEF COMMISSIONER, DELHI AND OTHERS. AIR 1959 SC 1214 wherein the Hon’ble Apex Court in paragraph 2 was pleased to hold as follows :-
An "industrial dispute" for our purposes has been defined in Section 2(k) of the Act as meaning "any dispute or difference between employers 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". 'Section 10(1) of the Act gives power to the appropriate government where it is of opinion that an industrial dispute exists or is apprehended to refer the dispute to a tribunal for adjudication. It cannot be denied on the facts of this case that there was a dispute between the hotel and its workmen and it went to this length that the hotel decided to dismiss a large number of workmen on October 7, 1955. It is also undoubted that the dispute was with respect to the terms of employment or conditions of labour of the workmen. The Chief Commissioner would therefore have power under Section 10(1) of the Act to make a reference of the dispute to a tribunal for adjudication. The attack of the hotel is on the form in which the reference was made and the contention is that the reference in this form is incompetent. We have already set out the relevant part of the order of reference giving the form in which it was made. The two parties to the dispute are clearly indicated, namely, (1) the employer which is the management of the hotel and (2) the workmen employed in the hotel. The objection, however, is that the words "as represented by the Hotel Workers' Union, Katra Shahanshahi, Chandni Chowk, Delhi" which appear in the order of reference make it incompetent, inasmuch as the union could not be made a party to the reference. We are of opinion that this objection is a mere technicality, which does not affect the competence of the order of reference. The fact remains that the dispute which was referred for adjudication was between the employer, namely the management of the hotel, and its employees, which were mentioned as its workmen. The addition of the words "as represented by the Hotel Workers' Union, Katra Shahanshahi, Chandni Chowk, Delhi" was merely for the sake of convenience so that the tribunal may know to whom it should give notice when proceeding to deal with the reference. That however did not preclude the workmen, if they wanted to be represented by any other union, to apply to the tribunal for such representation or even to apply for being made parties individually.
39. In the light of the above contentions, the only point that falls for consideration before this Court is, ‘Whether there actually exists a dispute which requires reference and adjudication by the Jurisdictional Tribunal?’ 40. In this regard one of the communications dated 8.9.2017 addressed by the petitioner-establishment to the Assistant Labour Commissioner, Dharwad Division, Hubli would suffice to answer the said point.
41. The recital in the letter clearly demonstrate the existence of industrial dispute. It speaks of a flash strike, consequential lock out by the Management, convening of a meeting by the Deputy Commissioner of Labour, the alleged bipartite settlement said to have been arrived, submitting of the Charter of Demands by the second respondent, the insistence of the petitioner to adjudicate upon the locus standi of the Union are all material which would suffice to hold that indeed a dispute existed as on the date the reference was made. Even otherwise, this Courts holds that the narration is sufficient material for the Government to apprehend arising of a dispute in the immediate future and hence the challenge to the impugned notification on the said ground of absence of any dispute must fail and is accordingly held so.
42. Nextly, the other contention advanced on behalf of the petitioner is that the Charter of demands by the second respondent is nonest in law in view of the alleged illegality attached to the registration of the said second respondent- Union.
43. It is not in dispute that the registration certificate issued by the competent authority is still valid and holds good.
Till such certificate, which has been authoritatively issued, is set aside by the Competent Authority/Appellate Authority, the argument that the certificate, being not in compliance with the provisions of Section 4, is nonest cannot be countenanced. Accordingly, the said contention is rejected.
44. That apart, the observation of the Apex Court in the case of MANAGER, HOTEL IMPERIAL, NEW DELHI Vs CHIEF COMMISSIONER, DELHI AND OTHERS set out in paragraph 2 of the said judgment reported in AIR 1959 SC 1214 is a complete answer.
At the cost of being repetitive, this Court quotes the following passage for the sake of convenience :-
The attack of the hotel is on the form in which the reference was made and the contention is that the reference in this form is incompetent. We have already set out the relevant part of the order of reference giving the form in which it was made. The two parties to the dispute are clearly indicated, namely, (1) the employer which is the management of the hotel and (2) the workmen employed in the hotel. The objection, however, is that the words "as represented by the Hotel Workers' Union, Katra Shahanshahi, Chandni Chowk, Delhi" which appear in the order of reference make it incompetent, inasmuch as the union could not be made a party to the reference. We are of opinion that this objection is a mere technicality, which does not affect the competence of the order of reference. The fact remains that the dispute which was referred for adjudication was between the employer, namely the management of the hotel, and its employees, which were mentioned as its workmen. The addition of the words "as represented by the Hotel Workers' Union, Katra Shahanshahi, Chandni Chowk, Delhi" was merely for the sake of convenience so that the tribunal may know to whom it should give notice when proceeding to deal with the reference. That however did not preclude the workmen, if they wanted to be represented by any other union, to apply to the tribunal for such representation or even to apply for being made parties individually.
45. Apart from the above, it is seen that the petitioner has sought for an amendment to the writ petition whereby it was prayed that he may be permitted to introduce Paragraph 11(a) with regard to the formation of the Association by the workmen of the establishment.
In fact, by the aforementioned communication dated 8.9.2017, the petitioner has expressed its opposition to the registration of the said Union viz. Tata Marco Polo Kranthikari Karmika Sangha Union from being registered on the premise that the members of the proposed Union are already members of the second respondent-Union. In the light of the law laid down by the Apex Court in the case of Imperial Hotel, it is seen that even an unregistered body like the one sought to be registered could also represent in the reference before the Industrial Tribunal.
46. In the totality of the facts, this Court is of the considered opinion that there indeed exists a dispute which requires an adjudication by the Competent Authority.
47. With regard to the locus standi of the second respondent-Union it is seen that by the order of reference one of the points for reference is that the Industrial Tribunal ought to adjudicate the locus standi of the second respondent-Union to represent the workmen of the petitioner/establishment. The examination of the said issue involves ascertainment of certain facts which is an exercise which this Court would not venture into and it ought to be by the Competent Authority i.e. the Industrial Tribunal, which is the original authority and fact finding body. It is for the parties to let in evidence or place on record such material to demonstrate their respective case with regard to lack of locus standi or otherwise.
48. In the light of the fact that the issue has been hanging fire for quite some time now, this Court is of the considered opinion that the writ petition could be disposed of by directing the Industrial Tribunal to hear and dispose of the reference dated: 20.10.2016 issued by the 1st Respondent bearing No.KaaE 744 IDG 2016 within a outer limit of six months from the date of receipt of the copy of this order.
Writ petition stands disposed of accordingly.
Sd/- JUDGE rs