Harnama Engineering Works (P) Limited vs The Industrial Tribunal, Punjab Chandigarh and Others

I.S. Tiwana, J.—Through this petition under Article 226 of the Constitution of India, an order of the Industrial Tribunal, Punjab, dated March 4, 1975 (Annexure P. 9) negativing the preliminary objections raised by the petitioner in two references No. 22 and 24 of 1974 (Annexures P. 1 and P. 2 respectively), disposed of through this common order, is impugned. The petitioner also seeks the quashing of these two references. These prayers are made on the basis of the following facts.

The petitioner which is a private limited company, engaged in the manufacture of pre-stressed concrete cement poles, employed workman respondent No. 2, Partap Singh, as a fitter and retrenched his services on July 4, 1973, as the petitioner was of the view that he was a surplus hand and was not needed by the company''s establishment. He was offered the retrenchment compensation namely, one month''s notice pay and gratuity at the rate of 15 days for every completed year of service but he refused to accept the same. He, however, accepted a sum of Rs. 324.20 sent to him through money order on the above said account. Later a demand notice dated April 9, 1973 (Exhibit R. 15 on the records of the Tribunal) was served on the management of the petitioner by Shri Vir Bhan, General Secretary of the Iron, Steel and Metal Workers Union (Registered), Ekta Bhwan, Putlighar, Amritsar calling in question the termination of employment of respondent Partap Singh. This led to the making of Reference No. 22 (Annexur P. 1) on February 7, 1973, under clause (d) of sub-section (1) of section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) by the State Government. The second reference, that is, No. 24 (Annexure F. 2) too was made on the same day under the same provision of law with regard to the closure of the factory by the petitioner and terminating the services of 11 workers named therein.

Two preliminary objections were raised by the petitioner to these references vide Annexures P. 3 and P. 4 Regarding Annexure P. 1 it was stated that the dispute raised by Partap Singh is an individual dispute and was not industrial dispute within the meaning of section 2(k) of the Act and it had not been sponsored or espoused by a substantial number of workmen of the respondent establishment and further the demand notice dated July 17, 1973 had been served on the management of the petitioner by the Iron, Steel and Metal Workers Union, Amritsar, which Union had no capacity to represent the worker and thus the dispute not having been raised by a competent person, the State Government had no jurisdiction to make the reference. Similarly with regard to Reference No. 24, it was stated that since the demand notice dated April 9, 1973, had been served upon the petitioner by the Union referred to above, the said notice was non-est and void as the Union was not a representative Union of the workmen of the petitioner establishment or a Union of allied trade. Both these contentions, as stated earlier, have been negatived by the Tribunal through the impugned order, Annexure P. 9.

After hearing the learned counsel for the parties in detail, I find that the contention of the petitioner so far as it relates to Reference No. 22 (Annexure P. 1) and the impugned order to that extent, has no merit. It has authoritatively been laid down by a Division Bench of this Court in Algu Ram v. The State of Punjab and others (1977)79 P.L.R. 283, that the issuance of a notice of demand is not a condition precedent to the reference of an individual dispute for adjudication to the Industrial Tribunal. According to the judgment, the statute does not prescribe any such condition precedent. Therefore, in view of this pronouncement, the notice of demand served on the petitioner being good or bad, does not in any way effect the competency and legality of the reference made to the Tribunal. Further introducing a legal fiction through section 2-A of the Act, the dispute of an individual workman connected with or arising out of his discharge, dismissal, retrenchment or otherwise, termination of his services by his employer has been made an industrial dispute notwithstanding that no other workman or any union of workman is either a party or espouses the dispute. This provision has thus enlarged the definition of ''industrial dispute''. I, therefore, negative this contention of the learned counsel for the petitioner.

So far as the validity of Reference No. 24 (Annexure P. 2) is concerned, I find that the learned counsel is on a stronger footing, under the Act in a dispute between an employer and his workmen, the workmen can be represented by the Union of the workers, of the same concern or a Union of allied trade. This legal position is not even contested by the learned counsel for the respondent-workmen. What is beng contended on their side and has been accepted by the Tribunal is that though the petitioner concerned is engaged in the manufacture of concrete poles, yet the Iron, Steel and Metal Workers Union being a Union of an allied trade it could take up or espouse the cause of the respondent-workmen. This is how the matter has been concluded by the Tribunal in the impugned award Annexure P. 9 after discussing the evidence of the parties:-

No doubt the main business of respondent establishment is manufacture of cement poles but as stated by this witness it is not debarred from manufacturing any other articles. The respondents gets Govt. Quotas of both steel and cement and has a workshop in which engineering work is done which is necessary step in the process of the manufacture of poles. The argument of the learned authorised representative of the management challenging the right of the workers of the respondent to become members of the Union is therefore without any substance and has to be noticed only to be rejected.

As is evident from the above noted conclusion of the Tribunal the petitioner had also raised an argument which has been repeated before me also that as per the constitution of the above-mentioned Union, the workmen of the petitioner concern could not possibly become members of the said Union as the membership of that Union was restricted to "all workmen who are employed in iron and steel factories and who have fulfiled the ways and objects of the Union can become the members of the Union and will have to pay Annas six as the yearly subscription." Thus to test the argument of the petitioner what remains to be examined is as to whether the petitioner concern can be said to be an iron or steel factory or the workmen of the petitioner can be said to be the workmen in an iron and steel factory or an allied concern of the petitioner. To determine this question what to my mind has is to be seen as to what trade is being carried on by the petitioner concern. Again the answer to this question is necessarily defendant on the nature of the finished goods being produced by the petitioner. It is beyond dispute that the petitioner concern is neither producing nor manufacturing any iron or steel articles. Rather it is consuming steel during the process of manufacturing of concrete poles. Thus it is clear that the workmen of the Union could not possibly become the members of the Iron, Steel and Metal Workers'' Union in view of the constitutional restriction reproduced above nor can this Union be stated to be the Union of an allied trade. Thus I find that the order of the Tribunal holding that since the petitioner concern is not debarred from manufacturing any other articles or that it has a workshop in which some engineering work is being carried on and thus the petitioner can be either styled as an iron as steel factory or its workmen can be said to be the workman of an allied trade, is manifestly erroneous.

It is not in dispute before me that a dispute between an employer and its workmen nay assume the nature of an industrial dispute, but before it can be so, it is necessary that the dispute must be sponsored by the Union of the workers of the company concerned or by a Union of the workers employed in a similar or an allied trade. If these conditions do not exist, any dispute between an employer and its workmen cannot b styled as an industrial dispute and cannot thus be referred by the State Government for adjudication under the Industrial Disputes Act. For this view I seek support from a judgment of the Supreme Court in The Newspapers Ltd. Vs. The State Industrial Tribunal, U.P., and a judgment of the Allahabad High Court in Imperial Electric Trading Co., Aligarh Vs. Industrial Tribunal (II), U.P., Allahabad and Others, Thus it is abundantly clear that the cause of the workmen of the petitioner concern having not been espoused by a Union of its workmen Union of workmen of an allied trade, the State Government could not possibly make a legal or valid reference to Industrial Tribunal.

In this view of the matter I quash the reference Annexure P. 2 and the award of the Tribunal, Annexure P. 9 so far as it relates to that reference. With regard to Reference No. 22, Annexure P. 1. the petition fails and is dismissed. In either case I do not pass any order as to costs.