@JUDGMENTTAG-ORDER
1. One G. Rajagopal originally filed the writ petition and since died during the pendency of the writ petition, the legal representatives of the said
Rajagopal were brought on record in and by order dated February 7, 1991 in W.A. No 774 of 1988. The said Rajagopal will hereinafter be
called as ''the first petitioner''.
2. The first petitioner was employed as a Watchman in E.I. D. Parry (India) Ltd., Ennore, Madras. He was then posted to supervise the loading of
the condemned gunny bags. On a surprise inspection by the Manager, it was found that 761 newly printed gunny bags and 430 second hand gunny
bags in good condition were loaded in the lorry. Apart from these gunny bags there were stainless steel tubes, one drum, tin sheets, brass valves
and lead sheets weighing about 200 kgs. were also loaded. But for the inspection of the Manager, these materials would have been lifted from the
factory. In those circumstances, the Management, the first respondent herein, initiated disciplinary proceedings against the first petitioner and after
following the due procedure, the first respondent, through an enquiry officer, held inquiry and that the Inquiring Officer in his report held that the
first petitioner was guilty of all charges framed against him and that on the basis of the findings of the Inquiring Officer, the first respondent
Management, by order dated May 9, 1978, dismissed the first petitioner from service. During that period, two industrial disputes viz., I.D. Nos 76
and 78 of 1978 were pending before the Labour Court. I.D. No. 76 of 1978 relates to the non-employment of workman Elumalai and I.D. No.
78 of 1978 relates to the suspension of another workman Wilson Manoharan. The Labour Court passed an Award dated February 13, 1979 in
I.D. No. 76/78 holding that the non-employment of the worker Elumalai was justified. The Labour Court by its Award dated November 30, 1978
dismissed I.D. No 78/78 on the ground that the dispute was withdrawn. After a period of more than one year, the first petitioner filed a complaint
under Sec, 33-A of the Industrial Disputes Act before the Labour Court contending that he was dismissed from service on July 9, 1957 during the
pendency of the aforesaid industrial disputes, without seeking approval under Sec. 33(2)(b) of the Act. The Labour Court, madras, by the
impugned award dated August 6, 1983 in Complaint No. 1/80 dismissed the said complaint on the ground that first petitioner Rajagopal was not a
workman concerned in the disputes which were then pending. In those circumstances, the first petitioner filed the above writ petition for the issue
of a writ of certiorari to quash the aforesaid order made in Complaint No. 1/80 dated August 6, 1983.
3. Mr. Fenn Walter, learned counsel appearing on behalf of the petitioner, contended that in so far as I.D. No 78/78 is concerned, the union, in
which the petitioner was a member, had sponsored the dispute and consequently the first respondent ought to have obtained permission as
contemplated under Sec. 33(2)(b) of the Act. It was also contended that in view of the fact that the first petitioner is workman concerned in the
said dispute the failure on the part of the Management to obtain permission vitiates the order of dismissal. It was also contended that the first
petitioner participated while sponsoring the dispute by the Union and consequently the Labour Court should have held that the petitioner is a
workman concerned in the industrial dispute i.e., in I.D. 78/78 which was then pending before the Labour Court.
4. Mr. T. S. Gopalan, learned counsel appearing on behalf of the first respondent, represents that in so far as I.D. No 76/78 is concerned, the
dispute was raised under Sec. 2A of the Act by an individual workman and not by the Union and, therefore, the pendency of the dispute would not
attract Sec. 33(2)(b) of the Act and in so for as I.D. No 78/78 is concerned, the industrial disputes relates to the suspension of one Wilson
Manoharan and that the first petitioner is not concerned in the dispute and hence there is no violation of Sec. 33 of the Act.
5. It is not in dispute that I.D. No 76/78 was raised under Sec. 2A of the Act by an individual workman and not by the Union. It is not the case of
anybody that the first petitioner was concerned with the said industrial dispute. The only point that was urged in this case in that since the Union in
which the first petitioner was a member, had sponsored and raised the dispute, I.D. No. 78/78 in respect of the suspension of a workman, which
was ultimately dismissed as withdrawn, the Management should have obtained permission under Sec. 33(2)(b) of the Act. It cannot be in dispute
that the first petitioner is not directly involved in any dispute or is not bound by the Award that was passed by the Tribunal. Nor the first petition
received any benefit as a result of the Award that was passed by the Labour Court in respect of I. D. No. 78/78. It is only by reason of the fact
that the first petitioner happened to be a member of the Union, which had sponsored the industrial dispute, can he be considered as a workman
concerned in the said dispute. It may also be taken note of that the first petitioner had not gained any benefit either directly or indirectly on the basis
of the Award that was made by the Labour Court by dismissing the I.D. as withdrawn.
6. In New India Motors (P) Ltd. New Delhi Vs. K.T. Morris, , the Supreme Court observed as follows (p. 555) :
...... We are not prepared to hold that the expression ''workman concerned in such dispute'' can be limited only to such of the workmen who are
directly concerned with the dispute in question. In our opinion, that expression includes all workmen on whose behalf the dispute has been raised
as well as those who would be bound by the Award which may be made in the said dispute.
7. In Cane Manager, New India Sugar Mills Ltd. Vs. Krishna Ballabh Jha and Others, , two workers, a Switch-board Assistant and a
Weightment Clerk were dismissed after a domestic enquiry. The employer did not apply to the Presiding Officer of the Industrial Tribunal Dhanbad
for approval of their action in dismissing the workmen as required by Sec. 33(2) of the Act, though admittedly a reference under Sec. 10(1) of the
Act was pending relating to the dismissal of two other workmen. The workmen filed applications under Sec. 33A of the Act before the Tribunal in
which a preliminary objection was taken as to the maintainability of the petition on the ground that the two workmen were not concerned in the
previous dispute. Labour Court decided the issue in favour of the workmen and hence the employer prosecuted the matter by challenging the
correctness of the Award of the Labour Court in the High Court under Arts. 226 and 227 of the Constitution of India. The High Court at Patna,
relying upon the Judgments of the Supreme Court in New India Motors (Pvt.) Ltd''s case (supra) and in Digwadih Colliery''s case 1964 II LLJ
143 and also the decision of the Supreme Court in Tata Iron and steel Company Ltd. v. D. R. Singh, reported in 1965 II LLJ 122, held that apart
from the ratios laid down by the Supreme Court there must be some common feature in the nature of the dispute in the two cases which should
serve as a connecting link, thereby rendering the workmen in the later case also ''workmen concerned'' in the dispute in the earlier case and the
mere fact that the same Union had taken up the case of the two workmen or else, that by virtue of Sec. 18(3)(d) of the Act all workmen may be
bound by the Award in the earlier dispute may not suffice, unless there is some other common feature in the two disputes mentioned above. The
High Court extracted the observations made by the same Court in Khagesh Sarkar and Others v. Tatanagar Foundry Company Ltd. reported in
1962 II LLJ-379, which is as follows (p-383) :
The question whether a workman is concerned in the dispute under adjudication is a mixed question of law and fact, and it is not possible to lay
any specific and particular test or rule of law or formula for determining a particular workman is a workman concerned in the dispute within the
meaning of S. 33 of the Act or not. The question in each case will have to be determined in view of the particular facts of that case. The principles
applicable to come to a decision in this regard, however, are in my opinion to find out the nature of the dispute under adjudication, the effect of its
decision on the rest of the workmen and the nature of the representation of the workmen in the dispute. The facts of each case considered in the
light to findings on the above points will determine the question at issue whether in a particular dispute a particular workman was a workman
concerned or not within the meaning of the above section.
8. In Hindustan Copper Ltd. v. The Central Industrial Tribunal, Jaipur and Others, reported in 1979 Lab 172 helper working in mechanical section
in the establishment of the employer was dismissed from service on the ground of misconduct and that the said worker made a complaint under
Sec. 33A of the Act before the Central Industrial Tribunal, Jaipur on the basis that he was a workman concerned in Case No. CIT/12/75 within
the meaning of Sec. 33(2)(b) of the Act, which was then pending before the Tribunal and as such he cannot be dismissed from service unless the
employer had obtained the approval for the same from the Tribunal. In that case, the High Court came to the conclusion that the employee cannot
be said to be interested at all in the outcome of the result of the cases and that simply because the employee happened to be the member of the
Union, which has sponsored the dispute, he cannot be construed as a workman concerned. While so holding, the Court observed as follows :-
..... that does not mean that raising or sponsoring a dispute by the Union will be sine quonon for holding that every member of such union will be a
workman concerned for any matter whatsoever even if it had no semblance of any connection or interest with the dispute raised by the Union. It
would be necessary for the workman to show as to how he is concerned with the earlier dispute raised by the Union and pending before the
Labour Court or Tribunal for determination. If the contention raised by the learned counsel for the respondent is to be accepted, the result would
be that in any every kind of dispute raised by the Union of any worker, every member of such union becomes a workmen concerned in the dispute
and the employer will not be able to take any action without the prior permission or approval of the court or tribunal, concerned. It is necessary for
the workman who wants to come within the category of workmen concerned in such dispute to prove that he is interested or has connection with
the dispute already pending for determination. If the dispute raised or sponsored by the union may be the kind like a demand of bonus, or salary
which might be affecting the members of the union as a whole, it can be said that every member of the union is a workman concerned in a dispute,
but where the dispute (is) raised or sponsored by the union on behalf of the individual workman relating to an incident concerning the act of that
workman individually, it cannot be said that every member of such union will be a workman concerned in the dispute.
9. In Jyanendra Mani Tripathi v. Hindustan Aeronautics Ltd. and Others, reported in 1976 LIC. 234, the Allahabad High Court held that all those
workmen on whose behalf dispute had been raised or who would be bound by the award made in pending dispute before the Industrial Tribunal,
are to be treated as workmen concerned in that dispute. It was further held that in order to determine this question the fact whether such workmen
have any direct or immediate concern with the disputes or that they would be in any manner be directly affected by the award made in that dispute
would not be conclusive, a protected workman would also be concerned in a dispute in case the dispute has been raised or is being conducted by
a Union of which he happens to be an office-bearer in which capacity he has been declared to be a protected workman.
10. In the instant case, even assuming that the first petitioner was a member of the Union which had sponsored the dispute, the first petitioner was
not bound by the Award that was passed; nor was he directly connected with the dispute already pending before the Labour Court. In view of the
aforesaid reasoning that the first petitioner cannot be construed as the workman concerned and if the first petitioner happened to be the workman
not concerned with the dispute for the reasons stated above, there was no need for the employer to seek permission as contemplated under Sec.
33(2)(b) of the Act. Simply because the first petitioner happened to be the member of the Union, Which sponsored the dispute, the petitioner
cannot claim that he is a workman concerned with reference to the dispute which was then pending unless there is some other common feature in
the disputes which were pending and the claim of the petitioner.
11. As stated already, I.D. No. 78/78 relates to the suspension of a workman and the Labour Court passed the Award dismissing the said
industrial dispute as withdrawn. In so far as the suspension of the workman is concerned, the first petitioner cannot claim that he was bound by the
outcome of the Award and cannot claim that he has been directly connected with the dispute. It is not the case of anybody that the first petitioner is
a protected workman.
12. In view of the above, there is no warrant to interfere with the impugned award of the Industrial Tribunal and consequently the writ petition fails
and is dismissed. No costs.
