The Rawalpindi Victory Transport Company P. Ltd. vs The State of Punjab and others

P.C. Pandit, J.—This is a petition by the Rawalpindi Victory Transport Company (Private) Limited, Ambala City (hereinafter referred to as the Company) for quashing the award of the Labour Court, Rohtak, Respondent No. 2.

According to the allegations of the Petitioner, it is a Private Limited Company doing the business of carrying passangers on certain prescribed routes in Ambala district since 1952. Towards the end of the year 1960, the State of Punjab, Respondent No. 1, took over two return trips on the Ambala-Narain Garh route from the Petitioner-Company, under what bad come to be known as the Fifty-Fifty Scheme, which necessitated the discharge from service of its two drivers, Gian Chand and Karnail Singh, Respondents 3 and 4. Accordingly, on 13-12-1960 the Petitioner-Company served notices of discharge from service on Respondents 3 and 4, who were the junior most on that cadre. One month''s pay in lieu of one month''s notice was remitted to them separately by money order. In the notices sent to them, they were further advised to approach the General Manager, Punjab Roadways, for appointment as drivers in accordance with the assurance given by the Provincial Transport Controller, Punjab, in a meeting of the Implementation Committee of the Fifty-Fifty Scheme. On 25-1-1961 the District Motor Transport Workers Union, Ambala, served a demand notice on the Petitioner Company by means of a letter for reinstatement of both Respondents 3 and 4. This demand, according to the Company, did not enjoy the support of the majority of its workmen. This matter, ultimately, came up before the Conciliation Officer, who, after making necessary investigation, made a report to the Government. On 29-6-1961 a communication was addressed by the Secretary to the Government, Punjab, Labour Department, to the Vice-President of the District Motor Transport Workers Union, Ambala City, to the effect that the demand regarding the reinstatement of the two retrenched workmen had been rejected, because during conciliation proceedings it was revealed that the retrenchment was made by the Management due to reduction in work. In spite of this communication, due to certain extraneous considerations, on 4th November 1961 the Government referred the following dispute to Respondent No. 2 for adjudication:

Whether the termination of the services of the following workmen is justified and in order ? If not, to what relief they are entitled ?

Shri Gian Chand, Driver.

Shri Karnail Singh, Driver.

Before Respondent No. 2, a statement of claim was filled on behalf or Respondents 3 and 4 and a written statement by the Petitioner-Company. On objections being raised by the Company, the following two preliminary issues were framed by Respondent No. 2 on 21st Decem-ber 1961:

Whether the dispute to which the present reference relates is an industrial dispute and has been espoused by a substantial section of the establishment ?

Whether the Government could not make the present reference and had it first refused to do so ?

The case was then adjourned for the evidence of the parties on these issues to 10th January 1962, on which date some evidence was recorded and the case was adjourned to 20th February 1962. On this date the parties closed their evidence. The cafe was then fixed for arguments on 21st February 1962. On this date, according to the Petitioner, Respondent No. 2 orally announced that the preliminary issues were decided in favour of the Company. No date was, therefore, fixed for further proceedings in the case. Subsequently, however, the Petitioner received a written notice from Respondent No. 2 to the effect that the case would come up for hearing on 23rd March 1962 at 9:30 a.m. in the Canal Rest House, Model Town, Ambala, and they should comply with the previous order passed on 2lst February 1962. As a matter of fact, no other order except the one announced orally, referred to above, was passed by Respondent No 2 on that date. Even the next date was not fixed in the presence of the representative of the Company, The managing Director of the Company, however, appeared in person before Respondent No. 2 on 23rd March 1962. Respondent No. 2 Wanted the counsel for the parties to address arguments on the preliminary issues but as neither of them had turned up, the Court framed the following issue No. (3) on merits also and adjourned the case to 12th April 1962:

Whether the termination of the set vices of the following workmen is justified and in order ? If not, to what relief they are entitled ?

Shri Gian Chand, Driver.

Shri Karnail Singh, Driver.

On this date, the Company presented an application, signed by the General Manager, to Respondent No. 2 through its Accountant, Benarsi Dass, to the effect that the preliminary issues should be decided in the first instance, because even if any of them was decided in their favour, the question of going into the merits of the case would not arise. Reliance for this submission was placed by the Company on the decision of this Court in Re: Workmen v. Management of S.P. Worsted Spinning Mills, Verka 23 F.J.R. 204, wherein it was decided that when preliminary issues were pleaded, then it was desirable that the same should be decided before taking up the question of merits of the case. Respondent No. 2, however, illegally and without any justification and with a view to cause injury to the Petitioner Company, changed his mind, as given out on 21-2-1962, and proceeded to record ex-parte evidence of the other side on merits. On 14-4-1962, Respondent No. 2 gave the award, by which he decided that the dispute to which the present reference related was an industrial dispute and had been espoused by a substantia) section of the establishment ; that the Government could make the present reference ; and that the termination of the-services of the two workmen was by way of retrenchment and could, under no circumstances, amount to transfer. As a result, Respondent No. 2 ordered the reinstatement of the two drivers on the same terms and conditions on which they were previously employed and the reinstatement was to be with continuity of service. They were also awarded full back wages from the date of discharge up to the time of their reinstatement. They were also allowed Rs. 16/- each as costs. This led to the filing of the present writ petition on 23rd June, 1962.

In the return filed by Shri Jawala Dass, Presiding Officer of the Labour Court, Rohtak, it is mentioned that it was incorrect that he made any verbal order on 20th February 1962 deciding the preliminary issues in favour of the Management. In fact, there was no occasion for making any such order on the 20th as on that date neither Shri Chanan Singh, the General Manager of the Company, nor Mr. Mittal, their authorised representative, who bad to argue this case, had appeared in Court. Instead, Shri Mangal Singh, Adda Incharge, appeared on behalf of the Company, who did not produce his letter of authority, which he said he had misplaced somewhere and he promised to produce the same on the following day. He was, accordingly, allowed to appear even in the absence of that letter of authority and both the parties closed their evidence on that day. The case was then adjourned to the following day for production of the letter of authority and the same was produced by Shri Mangal Singh. On 21st February 1962 also Shri Chanan Singh and Shri Mittal did not turn up and, therefore, the case was adjourned for arguments. As the Presiding Officer had already applied for 10/12 days'' leave in connection with the operation of his son, which had to be performed towards the end of February at Calcutta and as the exact date for the same had not been fixed by 21st February 1962, he did not fix the next date of hearing and told the parties that the same would be communicated to them by the office later on. Accordingly, the next date of hearing was fixed for 23rd March 1962. On that day, Shri Chanan Singh appeared on behalf of the Management and requested that the Presiding Officer should wait for Mr. Mittal, their authorised representative, who had to argue the case and who was due to return from Nangal on that day. The Presiding Officer waited both for Mr. Mittal and Mr. Madhu Sudan, the authorised representative of the workmen, but they did not turn up till about 12 noon. In the meanwhile, the Presiding Officer handed over to Shri Chanan Singh a very recent decision of the Supreme Court in The workmen of Rohtak General Transport Company v. Rohtak General Transport Company, (1962) 1 LLJ 634 and asked him to go through that judgment carefully as the same was applicable to the facts of the present case. He also told him that in view of this Supreme Court judgment, his counsel perhaps would not be able to urge anything in support of the preliminary objection, but Shri Chanan Singh requested that another opportunity should be allowed to them to address arguments on the same. At this, the Presiding Officer suggested to Shri Chanan Singh that there had already been se eral adjournments in the case and that as desired by them he had waited for his counsel also several hours At this, the parties agreed that the issues on merits should also be framed and the case adjourned for evidence and arguments. This course appeared to be quite reasonable to the Presiding Officer, who, accordingly, framed the issue on merits and adjourned the case to 12th April, 1962 for evidence of the parties. On 12th April, 1962. however, Shri Chanan Singh, the General Manager, and Mr. Mittal, their counsel, again failed to appear and instead Shri Benarsi Dass, Accountant of the Company, with limited authority to present an application, appeared on behalf of the Management and presented an application requesting that the preliminary issues should be decided first, but this request was not granted. No one appeared on behalf of the Management to address arguments on the preliminary issues, although on the previous hearing the Presiding Officer had pointedly invited Shri Chanan Singh''s attention to the latest Supreme Court judgment, which was against them. It was, thus, incorrect that the Presiding Officer had either capriciously changed bis mind or had taken ex parte proceedings against the Management with a view to cause injury to them. Shri Benarsi Bass had only limited authority to present the application and the Management had no arrangements to defend the case or even to represent them on that hearing. Shri Benarsi Dass also informed the Presiding Officer that both Shri Mittal and Shri Chanan Singh had left Ambala on the same morning and, therefore, it was not possible for him to call any one of them to appear in Court. In these circumstances, according to the Presiding Officer, he had no alternative but to take ex parte proceedings and to record the evidence, as the case was fixed for that purpose on that day.

In the written statement filed by the State, the allegations made by the Petitioner were denied. It was further stated that the reference was made after fully considering the circumstances existing at the time of the same. The reference was fully in accordance with law and well within the jurisdiction of Respondent No. 1.

Learned Counsel far the Petitioner, in the first instance, argued that in the circumstances of the, present case Respondent No. 2 had no justification whatsoever to take ex parte proceedings against the Company. He contended that the Labour Court had orally announced on 21st February, 1962 that the preliminary issues were decided in favour of the Company, liven if Respondent No. 2 wanted to decide these preliminary issues afresh, then the same should have been decided first before going into the merits of the dispute and the application filed by the Management in this connection on 12th April, 1962 should have been accepted. If Respondent No. 2 was not inclined to accede to their request in this respect, then a short adjournment should have been given to them to produce evidence on the merits of the case that is, on issue No. 3.

I have gone through the entire proceedings of the Labour Court and find that it is not possible to agree with the contention of the learned Counsel for the Petitioners that Respondent No. 2 had orally decided the preliminary issues in favour of the Company on 21st February, 1962. If that had been so, there was no need of taking any further proceedings on the merits of the case. I am not prepared to hold that the Presiding Officer of the Labour Court had changed the entire record from 20th February, 1962 onwards. It is also not possible to disbelieve the written statement filed by the Presiding Officer in this connection. It is undisputed that when there is a dispute as to what happend before a Court or Tribunal, the statement of the Presiding Officer in regard to it is generally taken to he correct (See in this con nection Union of India v. T.R. Verma, AIR 1967 S.C. 882) It is significant to mention 1 that if the version of the Company was correct, then in the application filed by them on 12th April, 1962 they would have in the very beginning stated that the Labour Court had already decided the preliminary issues in their favour on 2lst February, 1962 and there was ho need to redecide them. This circumstance goes along way to show that the stand taken by them on this point is not correct. Moreover, it is not possible to go into such like controversial questions of fact in the writ proceedings, especially when the records of the Labour Court are quite clear.

As regards the question as to whether these preliminary issues should have been decided in the first instance, it is clear from the proceedings of the Labour Court dated 23rd March, 1962 that both the parties themselves requested Respondent No. 2 that the issue on the merits might also be framed and the same be disposed of along with the preliminary issues. Admittedly, there is no legal bar in deciding the preliminary issues and the issues on merits together, especially when the parties themselves want this course to be adopted.

Regarding the point as to whether the Labour Court should have given a short adjournment to the Company for producing evidence on merits, and should not have taken ex parte proceedings against it, I will revert to the same after discussing the other contentions raised, by the learned Counsel for the Company.

Learned Counsel then contended that in the present, case there was no ''industrial dispute'', which could be referred to to the Labour Court.On the other hand, it was merely an ''individual dispute''. The decision of Respondent No. 2 on this point was contrary to law.

It is undisputed that in order to convert an ''individual dispute'' into an ''industrial dispute'', it is necessary that there should be a substantial number of co-workmen of the aggrieved employee to espouse his cause. In The The Bombay Union of Journalists and Others Vs. The ''Hindu'', Bombay and Another, , the test laid down for ascertaining whether an individual dispute had acqured the Chiracter of industrial dispute was whether at the date of the reference the dispute was taken up or supported by the Union of Workmen of the employer, against whom the dispute was raised, by an individual workmen or by, an appreciable number of workmen. Nov the point for decision is whether in the instant case the test laid down the Supreme Court has been fulfilled or not. It is clear from the statement dated 21st December 19(sic) 1 made by Chanan Singh, the General Manager of the Company, that at the time when Respondents 3 and 4 were dismissed, the Company had 16 regular emplyees, including the two workmen concerned. He had further admitted that four out of sixteen employees had all along espoused and were still espousing the cause of Respondents 3 and 4. The Labour Court also recorded the statement of Sardari Lal, an employee of the Company for the last several years, produced by the workers, who had stated that he had all along espoused and was still espousing the case of Respondents 3 and 4. Respondent No. 2 has, thus, found that five workers were supporting I their cause. Relying on an unreported decision of the Supreme Court in The The Bombay Union of Journalists and Others Vs. The ''Hindu'', Bombay and Another, , where five workman out of a total strength of 24 were considered enough to convert an individual dispute into an industrial dispute, Respondent No. 2 ha; held that the dispute in the present case was also an industrial one. Under these circumstances, in my view the Company has failed to establish that the dispute in the present case was not an industrial one. I, therefore, see no ground to interfere with the finding given by the labour Court on issue No. l.

Learned Counsel next contended that the reference made by the Government was invalid, because the Secretary to the Government, Punjab, Labour Department, had on 29th June, 1961 by means of a letter, annexure ''H'' informed the Vice-President of the District Motor Transport Workers Union, Ambala City, that the demand regarding the reinstatement of the retrenched workmen had been rejected, because during the conciliation proceedings it was revealed that the retrenchment was nude by the Management due to reduction in work. After having taken his action u/s 12(6) of the Act, the Government c mid not refer the dispute u/s l0 of the Act, unless fresh material had been brought to its notice before doing so. In the present case, no such material was there and, thus, the reference was bad in law.

A parusal of the wording in ''annexure ''H'' would show that the Government had no specifically mention d that they were not prepared to make a reference to the Labour Court, as provided in Section 10(1) of the Act. Even if this annexure is construed to be such a refusal, the Government could review its previous decision an 1 make a reference to the Labour Court. It may be mentioned that the order of reference is an administrative one and once the Government comes to the conclusion that an industrial dispute exists between the workmen and the Management of the Company, then this Court would not interfere with the discretion exercised by the Government in this respect. In The State of Madras Vs. C.P. Sarathy and Another, , it was held-

It must be remembered that in making a reference u/s 10(1), the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot, therefore, canvass the order of reference closely to see if there was any material before the Government to support conclusion, as if it was a judicial or quasi-judicial determination. No doubt, it will be open to a party seeking to impugn the resulting award to how that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction, merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters.

Moreover, it is noteworthy that in annexure ''H'', it was mentioned by the Government that the demand regarding the reinstatement of retrenched workmen had been rejected, because during conciliation proceedings it was revealed that the retrenchment was made by the Management due to reduction in work It is undisputed that the Government could not refuse to make a reference on the ground that the retrenchment was made by the Management due to reduction in work, because the Government could not take upon itself the duty of deciding the industrial dispute on merits. All that it could say was whether there was an industrial dispute worth reference u/s 0 of the Act or not. It is possible that the Government might have decided to make the present reference, when if was brought to their notice that the position taken by them in annexure''H''was not strictly in accordance with law. There is, thus, no force in this contention.

Coming back to the point whether the Labour Court should have given a short adjurnment to the Company for producing evidence on merits and should not have taken ex parte proceedings against it on 12th April 1962, I am of the opinion that in the circumstances of this case, the Labour Court should have given them at least one adjournment for producing evidence on merits. It is common ground that on 12th April, 1962 Benarsi Dass, the Accountant of the Company, was present and he had presented an application to Respondent No. 2 on behalf of the Company for deciding the preliminary issues in the first instance. Since he was not a lawyer, he could not address arguments on the preliminary issues. It is undisputed that if any of these preliminary issues bad been decided in favour of the Company, the case would not have proceeded on merits. Ordinarily, such like preliminary | issues are tried in the first instance, so that the parties are absolved J from incurring expenses in producing evidence on merits. If Respondent No. 2 was not inclined to grant this request for whatever reasons, it would have been proper if he had granted a short adjurnment either for hearing arguments on the preliminary issues or for producing evidence on merits, especially, when the Company was always represented on the previous hearings in the case. The proceedings of the Labour Court do not show that the conduct of the Company was in any way contumacious, which entitled Respondent No. 2 to take such a drastic action against it. I have gone through the writ, petition and the annexures thereto and am of the view that; the Company had got material to produce in evidence on merits.

The order of the Labour Court in taking ex parte proceedings has, in my view, resulted in great injustice to the Company and it is a fit case in which i he Company should be given an opportunity to produce evidence on issue No. and cross-examine Respondents 3 and 4. It may be mentioned that the findings of the Labour Court on issues 1 and 2 have been confirmed by me, as mentioned above.

With these observations. I would accept this writ petition and quash the impugned award of the Labour Court which would now pro-ceed with the case in accordance with law. In the circumstances of this case, however, there will De no order as to costs in these proceedings.