Workmen in Wadva Bros. Engineers vs Wadva Bros. Engineers and Others

Raju, J.—The above appeal has been filed by the workmen, who succeeded before the Labour Court but lost before the learned single

Judge, challenging the order of the learned single Judge dated November 26, 1990, in W.P. No. 3266 of 1987. The writ petitioner before this

Court is the management and the writ petition came to be filed for a writ of certiorari to call for and quash the award of the Second Additional

Labour Court, Madras, dated December 2, 1986, in I.D. No. 16 of 1985.

The dispute came to be entertained as noticed above on a reference made by the Government in G.O. Ms. No. 1, Labour, dated January 3,

1985, as to the question whether the stoppage of work in Wadva Bros. Engineers from January 7, 1984, is a case of lock-out or closure and as to

what relief the workmen would be entitled to? The averments before the Labour Court were that the workmen were all working in the respondent

management company, that the workmen in the company had never been kept on the rolls of the company for more than few years, they were all

members of the INTUC Union, that they raised a charter of demands on November 15, 1983, and during the pendency of negotiations, the

management issued a closure notice and the closure was not genuine but merely an attempt to break the union. It was also their case since the

INTUC Union was not espousing the cause of the workers, the workers joined the socialist workers union to prosecute their case and this union

espoused the cause contending that the alleged closure of the respondent''s machine shop was only a lock-out. The management was said to have

agreed that it was running the concern by leasing out to one Sekar and Munuswamy and the claim of the management that the workers had settled

their dues was incorrect and that the workmen, who have not settled their dues according to the workmen before the Labour Court are entitled to

the relief of reinstatement with attendant benefits.

The respondent-management contended that the claim of the workmen that the management never kept the workmen on rolls for more than few

years and that they were meagrely paid is false. 11 out of 13 have settled their accounts and [the respondent showed the settlement receipts given

by the workmen to the Commissioner of Labour and, therefore, the union has no locus standi to raise the dispute u/s 2(k) of the Industrial Disputes

Act. It was also claimed for the management that the machine shop of the company was not working properly for some time due to various

reasons resulting in dwindling of production and, therefore, it was found to be uneconomical to carry out the work particularly in the light of the

non-co-operative methods alleged to have been adopted and the alleged subversive activities resulting in repairs to machines, necessitating the

closure of the machine shop, the management has issued a notice to all the 13 workmen offering one month''s pay in lieu of notice and

compensation and that 11 workmen, as noticed earlier, have settled their accounts by receiving their legal dues and passing on due receipts in final

settlement of their claim. The workmen by name Samuel and Sethumadhavan refused to settle their accounts. Sekar and Munuswamy were said to

be lessees, who entered into the lease agreement. Finally, the contention of the management was that what has happened was not a lock-out as

contended by the union and it was really a closure.

Before the Labour Court, both parties adduced oral and documentary evidence. The management has filed an application seeking for

adjudication on a preliminary issue as to whether there had been community of interest and proper representation and adjudication of the dispute

warranting interference.

The Labour Court ultimately found under the award that the union in question which espoused a cause of the workmen in the machine shop of

the respondent-management was well within its rights to do so and the contention of the management that the union has no locus standi was not a

tenable one. As for the other question, whether it was a closure or lock-out, the Labour Court was of the view that what has really been effected

was only a lock out and not a closure as claimed by the management. The claim of the management that 11 out of 13 workmen settled their claims

even before the Conciliation Officer was repelled and, therefore, the industrial dispute was he|d to exist and that there has been proper

representation by the union on behalf of the workers of the respondent-management. Consequently, the Labour Court passed an award stating that

the stoppage of work in Wadva Bros. Engineers from January 7, 1984, was a case of lock out and, therefore, the six workmen whose names have

been mentioned are entitled to reinstatement in service with back-wages and all attendant benefits from January 7, 1984.

Aggrieved, the management filed, as stated earlier, W. P. No. 3266 of 1987, challenging the award of the Labour Court. The learned single

Judge has accepted the challenge to the award projected by the management by holding that there was no proper representative capacity for the

industrial dispute being sponsored and projected for adjudication, in that, according to the learned Judge, except two of the workmen, there was

no other who could be said to have joined together and resolved to expose the cause of the workmen in question arid that being the position, in

respect of 13 workers, the industrial dispute cannot be entertained under the Act. The learned single Judge also differed from the finding of the

Labour Court on merits and held that what has happened was only a closure and this was obvious according to the learned single Judge from the

fact that the establishment was under the management of two persons, who became lessees and who were said to have been running the same after

January 1, 1984. As for the claim of the management that 11 out of 13 workers have settled their claims during the conciliation proceedings which

aim has been held to have not been proved by the Labour Court, the learned single Judge came to the conclusion that the claim of the management

stood established also on the basis of the records made available by the learned Government Pleader on the directions of this Court from the file of

the Conciliation Officer. On the above conclusions arrived at the writ petition came to be allowed resulting in the filing of the above appeal.

Mr. K.M. Ramesh, learned counsel appearing for the appellant workmen, strenuously argued that the learned single Judge was in error in

recording the findings differing from the one recorded by the Labour Court on every one of the three issues noticed supra and that in exercise of

the jurisdiction under Article 226 of the Constitution of India, it was not given to the learned single Judge to reappreciate the evidence as if on an

appeal and consequently, the findings recorded by the learned single Judge are liable to be set aside. It was also contended that the learned single

Judge ought not to have relied on the receipts produced by the Government Pleader from the tiles of the Conciliation Officer and that such

production and acceptance at this stage of the proceedings under Article 226 of the Constitution of India resulted in denial of an effective

opportunity to the workmen to substantiate their claim that those materials are not legally acceptable. Learned counsel also took great pains to

substantiate the grievance of the workmen that the learned single Judge was not right in coming to the conclusion that there was no proper espousal

of the dispute on behalf of the workmen by the required number of workmen and that we should agree with the finding recorded by the Labour

Court than that of the learned single Judge for the reason that five workmen whom the learned single judge has held to be not workmen of the

management are really workmen of the respondent-management and, therefore, the Labour Court was right in including them also as the workmen

of the concern.

Learned counsel invited our attention to two decisions of the Apex Court to substantiate his claim that the espousal of the cause was in

accordance with law and the dispute referred and entertained by the Labour Court was valid. The first is the decision in Workmen of Rohtak

General Transport Co. v. R.G.T. Co., (1962) I LLJ 634 (SC). That was a case wherein in an establishment employing 22 workmen, the dispute in

regard to two workmen came to be espoused by five workmen excluding the two concerned workmen. The Apex Court, before whom a

challenge on the entertainment of the dispute came to be made, held that since no such point was taken before the Labour Court on behalf of the

management that the five workmen did not espouse the cause before it was referred for adjudication, the Labour Court was not right in rejecting

the reference on the preliminary ground. In our view, the issue that was urged and actually decided was not in the manner which is now sought to

be projected before us. While posing the question for adjudication in that case as to whether the dispute has been sponsored by the workmen

before it was referred for adjudication, it was held by their Lordships of the Supreme Court that in view of the fact that no point was taken on

behalf of the management that the five workmen supported the cause of the two workmen after reference and riot prior to the reference, the two

documents filed before the Labour Court should be taken as prima facie evidence to show the support of the five workmen to the cause of the two

workmen before the same was referred for adjudication and if really such a point had been taken before the Labour Court, the five workmen

would have been examined to show that they supported the cause before the date of reference. We find nothing in the said decision in support of

the claim made now before us in this proceedings.

The next decision referred in Workmen of Dharampal Premchand (Saughandhi) Vs. Dharampal Premchand (Saughandhi), dealt with a case

wherein 18 out of 45 workmen in an establishment who were members of union whose membership was not confined to the establishment in

question were under dispute only, but at the same time, all those workmen who were members of the union and who were dismissed from service,

having joined together to make their claim for reinstatement espoused by such union of which none of the other workmen in service was a member

was held to be valid reference. A perusal of the said decision would go to show that the principles laid down in the context of the fact situation in

that case will have no relevance or application to the case on hand. There was no dispute about the very workers who were said to have joined to

project the dispute being either workmen or not of the very establishment in which the dispute arose. On the other hand, that appears to be a case

on facts wherein though 45 workmen were there in that particular establishment, it is only 18 were members of the particular union and all the 18

workers who were dismissed joined together to fight their cause and it is that cause which has been espoused by the particular union, the

membership of which was not only confined to the establishment in respect of which the dispute arose but the workers of other establishments as

well. It is in that context the 18 persons joining together to vindicate their rights through the union of which they were members were found to be in

order and not on account of the fact that 18 could be said to be the sufficient number out of 45 to constitute the required representative status to

vindicate an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act, 1947. The terms of industrial dispute have been

always construed to convey the meaning that the machinery provided under the Act except those covered u/s 2-A of the Act should be set in

motion and espoused by all the workmen or even by a majority of the employees/ members of the union concerned.

We have carefully considered the submissions of learned counsel appearing for the appellant as also that of Mr. Vijayakumar, learned counsel

for the respondent, who while reiterating the submissions made before the learned single Judge and adopting the reasons assigned by the learned

single Judge also contended that the Labour Court committed patent error in ignoring the attendance rolls produced to substantiate the claims that

the five workmen who were treated by the Labour Court as workmen of the company in question were not really their workmen and that the

learned single Judge was right in interfering with the award of the Labour Court on account of such serious lapses on the part of the Labour Court.

We find that the Labour Court, as urged by (sic.) the respondent-management, has not adverted to the attendance rolls and these aspects which

go to the root of the matter as to the status of the five workmen in question, which are essentially necessary in finding out as to whether the dispute

has been properly espoused and duly referred has been overlooked by the Labour Court. On the other hand, the learned single Judge has

adverted to these aspects and also the move made by the respondent-management to have the issue relating to the locus standi decided as a

primary issue making the relevant and required factual allegations, which according to the learned single Judge had not been properly adverted to

or considered or adjudicated warranting his interference. We could see no error in the procedure adopted by the learned single Judge to interfere

with the said findings. We are unable to agree with the explanation now sought to be given by learned counsel for the appellant that the five

workmen who were held to be not workmen of the concern by the learned single Judge must have been treated as casuals whom the company

was in the habit of not including in the attendance register. The learned single Judge, at any rate, in our view, cannot be found fault with, for going

on the basis of the statutory attendance register maintained and periodically inspected by the competent inspecting authorities as the basis for

deciding the status and character of a worker. The relevant materials on record but ignored by an adjudicating authority like the Labour Court

could very well be adverted to even in proceedings under Article 226 of the Constitution of India and findings of fact rendered in utter disregard of

the relevant land vital materials could be interfered with in exercise of jurisdiction under Article 226 of the Constitution of India since such finding

would suffer from the vice of perversity in arriving at them. This position has by now come to be well-settled and we do not see any error

whatsoever. That apart, we cannot also find any error in the finding of the learned single Judge that 11 out of 13 workers have settled their claims

as earlier noticed. Learned counsel for the appellant took strong exception to the learned single judge placing reliance upon the records produced

by the Government Pleader. Though no doubt the management could have taken effective steps to summon those receipts evidencing settlement of

the claims of 11 workers, the said lapse alone could not be the basis for once and for all rejecting the claim of the management of such settlement

which has been indisputably projected even before the Labour Court. The materials produced in the form of receipts passed on by the concerned

workers at the stage of proceedings before this Court under Article 226 of the Constitution of India were from the custody of the Conciliation

Officer and from his records and not by the management from their possession. Since the fact that such settlement has been effected by 11

workers has been projected even before the Labour Court by the management if the move of the workmen is really genuine and sincere nothing

precluded the workmen making arrangements to examine those workmen On their side before the Labour Court to prove that they have not really

settled their claims. This not having been done and in the teeth of the records having come from out of the official custody of the competent

authority before whom during the course of conciliation, the said settlement was stated to have been arrived at, the learned Judge could not be

found fault with for relying upon those materials and the finding recorded in this regard does not call for our interference.The alleged denial of an

opportunity, therefore, has no merits for acceptance. Though receipts as such were made available, at the stage of the writ petition, from the

custody of the Conciliation Officer, the plea has been specifically projected even at the earliest stage and as noticed by us, nothing precluded the

workmen from being examined on behalf of the union even in (sic.) the Labour Court. In the light of our conclusions on the above two issues

sustaining the order of the learned single Judge on those two aspects, we consider it even unnecessary to enter into an adjudication of the question

whether it is lock-out or closure. For all the reasons stated above, we do not find any merit in the above appeal. The appeal, therefore, falls and

shall stand dismissed. No costs. The direction with reference to Samuel, a worker issued by the learned single Judge will stand and if not already

settled, shall be complied with, notwithstanding the dismissal of this appeal.