@JUDGMENTTAG-ORDER
P.V. Dixit, C.J.@mdashBy this application under Articles 226 and 227 of the Constitution the Petitioners, who carry on the business of
Manufacturing Bidis at Burhanpur, pray for the issue of a writ of certiorari for quashing an award made by the Industrial Tribunal, Indore, on 2nd
may 1964 deciding some of the objections raised by the Petitioners in an ""industrial dispute"" referred to the Tribunal for adjudication by the
Government by an order dated 20th July 1963 made u/s 10(1) of the Industrial Disputes Act, 1947.
2. The order which the Government passed on 20th July 1963 u/s 10(1) of the Act is in the following terms:
No. /5568/XVI, WHEREAS the State Government is of opinion that an Industrial Dispute exists between the Rashtriya Bidi Mazdoor Sangh,
Burhanpur and the Bidi Manufacturer''s Association, Burhanpur regarding leave with wages etc. as specified in the schedule hereto annexed.
And WHEREAS the State Government consider it desirable to refer the said dispute for adjudication.
NOW THEREFORE, in exercise of the powers conferred by Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 (XIV of 1947)
the State Government hereby refers the said dispute for adjudication to the Industrial Tribunal Indore coustituted u/s 7-A of the said Act.
SCHEDULE
1. whether there exists a case for payment of leave with wages to the emplopees employed in the Bidi Factories of Burhanpur listed in the
Annexure ?
2. whether there is any justification for ""payment of wages at the rate of Rs. 2/- per thousand bidis rolled to the workers of the bidi factories listed
in she Annexure ? If so, from what date the same rate should be payable ?
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3. The Petitioners raised certain preliminary objections questioning the validity of the reference and the jurisdiction of the Tribunal to entertain and
proceed with the reference. Their first objection was that according to the order of reference dated 20th July 1963 an Industrial dispute existed
between the Rashtriya Bidi Mazdoor Sangh, Burhanpur, and the Bidi Manufacturer''s Association. Buthanpur, but that the latter Association was
not an ""employer"" within the definition of the term given in Section 2 (g) of the Act and, therefore, the reference was bad and illegal. They also
raised the objection that the second question referred for adjudication by the order dated 20th July 1963 was already the subject matter of an
award pronounced on 30th May 1963 and, therefore, a second reference on that subject-matter was barred by the principle of res judicata; and
that the Tribunal had no jurisdiction to determine where there was any failure on the part of the Bidi manufacturers to pay to persons engaged in
rolling Bidis at the rate of Rs. 2/- per thousand in accordance with the earlier award dated 30th May 1963. The Tribunal has held that the
reference made by the Government by its order dated 20th July 1963 is legal and maintainable. It postponed decision on other preliminary points
till after the recording of evidence. The Tribunal observed that those preliminary objections would be decided along with other issues. On the
legality of the reference the Tribunal observed that ""though ostensibly it might appear that the reference is against the Bidi Manufacturer''s
Association, Burhanpur, in substance and in essence, it is against the members of the said Association and the Association simply represents them
as required by Section 36(2) of the Act. Such being the position, the objection raised is liable to be rejected.
4. Shri Dharmadhikaree learned Counsel appearing for the Petitioners, argued that the order passed by the Government on 20th July 1963 u/s
10(1) of the Act clearly showed that the dispute which the Government referred to the Tribunal for adjudication was not an ""Industrial dispute
between the Petitioner-employers and their employees but was only a dispute between the Rashtriya Bidi Mazdoor Sangh, Burhanpur, and the
Bidi Manufacturer''s Association, Burhanpur, that under the Act no dispute between an Association of the employers and a Union of the
employees could be referred to an Industrial Tribunal for decision; and that, therefore, the reference made to the Tribunal by the Government by its
order dated 20th July 1963 was illegal. It was also urged that the Tribunal erred in holding that the other preliminary objections of the Petitioners
would be decided along with other issues.
5. Shri Dabir, learned Counsel for the Respondent Rashtriya Bidi Mazdoor Sangh, did not seriously contest the position that the order dated 20th
July 1963 passed by the Government u/s 10(1), of the Act purported to refer to the Tribunal for adjudication an ""industrial dispute"" said to be
existing between the Rashtriya Bidi Mazdoor Sangh and the Bidi Manufacturer''s Association, Burhanpur, and not a dispute between the Petitioner
employers and their employees. Learned Counsel, however, submitted that if, under the order dated 20th July 1963, the Petitioners were not
parties to the dispute, then they had no locus standi to challenge the legality of the Tribunal''s determination that the reference made to it by the
Government by its order dated 20th July 1953 was legal.
6. In our judgment, the order passed by the Government on 20th July 1963 u/s 10(1) of the Act referring to the Industrial Tribunal for adjudication
the dispute described in the first paragraph of the said order is, on the face of it, illegal. Section 10 (1) of the Act lays down:
Reference of Disputes to Board, Courts or Tribunals -
(1) where the appropriate Government is of opinion that any industrial dispute exists or is apprehended it may at any time, by order in writing-
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(2) 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 or Third Schedule, to a Tribunal for adjudication.
The term ""Industrial dispute"" has been defined by Section 2 (k) thus: -
Industrial dispute"" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen
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;
7. Now, it will be seen that in making a reference u/s 10(1) the Government has first to form an opinion that an industrial dispute exists or is
apprehended. The formation of the opinion mentioned in Section 10(1) is a preliminary step in the discharge of the function under that provision.
No doubt as held by the Supreme Court in State of Madras Vs. C.P. Sarathy and Another, , in making a reference u/s 10(1) the Government
does an administrative act. Bus the fact that the function exercised by the Government u/s 10(1) is an administrative function does not preclude the
aggrieved party from showing that what has been referred to by the Government by an order under Section10(1) is not an ""industrial dispute"" at all;
and that therefore, the Industrial Tribunal has no jurisdiction to make any award on the reference This is clear from the decision of the Supreme
Court in The Newspapers Ltd. Vs. The State Industrial Tribunal, U.P., , In that case it was observed by the Supreme Court: -
In spite of the fact that the making of a reference by the Government under the Industrial Disputes Act is the exercise of its administrative powers,
that is not destructive of the rights of an aggrieved party to show that what was referred was not an ""Industrial dispute"" at all and therefore the
jurisdiction of the Industrial Tribunal to make the award can be questioned, even thought the factual existence of a dispute may not be subject to a
party''s challenge.
Thus, if the dispute is an ""Industrial dispute"" is define in the Act, its factual existence and the expediency for the making of a reference in the
circumstances of a particular case are matters entirely for the Government to decide upon, and the Court cannot canvas the order of reference for
seeing whether there was any material before the Government to support its conclusion about the factual existence of a dispute or the expediency
of making a reference in regard to it. But, it is competent for this Court to determine whether by the order dated 20th July 1963 the Government
refer red to the Tribunal for adjudication an ""industrial dispute within the meaning of Section 2 (k). If the dispute is not an ""industrial dispute"" as
defined by Section 2 (k) of the Act, then the Industrial Tribunal has clearly no jurisdiction to entertain and make an award dispite a reference u/s
10(1) of the Act.
8. According to the definition of ""industrial dispute"" given in Section 2 (k), in order to constitute a dispute or difference connected with the
employment or non-employment of the terms of employment or with the conditions of labour, of any person, the dispute or difference must be
between employers and employers, or between employers and workmen, or between workmen and workmen. A dispute between a Sangh or
Union of the employees and an Association of the employers is clearly not a dispute between any employers and their workmen. It is no doubt
true, as held by the Supreme Court in C.P.T. Service v. Raghunath AIR 1957 SC 105 and The Bombay Union of Journalists and Others Vs. The
''Hindu'', Bombay and Another, , that a dispute between an employer and a single employee is not per se an industrial dispute but that it may
become one if it is taken up by the Union of the employees or a number of workmen But from the proposition laid down in these cases of the
Supreme Court that the machinery contemplated by the Industrial Disputes Act can be set in motion to settle only disputes which involve the rights
of workmen as a class and that a dispute touching the individual rights of a workman cannot be the subject of adjudication under the Act when the
same has not been taken up by the Union of the employees or a number of workmen, it does not follow that a dispute between the employers and
the Union of employees or between an Association of employers or an Union of employees is an ""industrial dispute"" within the meaning of the
definition of the term given in Section 2 (k). It is possible to imagine a case where a Union of employees on its own and without any reference to
the wishes or the interest of the employees purports to start some dispute when it has no power conferred upon it by its members to start that
dispute. Cases of disputes having been raised by Unions of employees without the approval or backing of their members are not unknown. In The
Kandan Textile Ltd. Vs. The Industrial Tribunal (1) and Others, , a reference to the Tribunal was made by the Government u/s 10(1) on the basis
of a letter sent by the President of a Labour Union. The Madras High Court quashed the award taking the view that simply because some
individual or organization addressed a communication to the Government saying that there was an industrial dispute between the employer and the
workman, the Government would not be justified in passing an order referring the, matter to the tribunal without being satisfied on the material
placed before it that a dispute did exist or was apprehended. The facts that an Association of employers or a Union of employees is entitled to
represent the employers or the employees; as the case may be, in proceedings under the Industrial Disputes Act does not also make an industrial
dispute between the employers and the employees a dispute between the Association of employers and the Union of employees.
9. Here, as is evident from the order dated 20th July 1963 itself, the Government formed the opinion that an industrial dispute existed between the
Rashtriya Bidi Mazdoor Sang and the Bidi Manufacturer''s Association; Burhanpur. A dispute between the Sangh and the Association is clearly
not an ""industrial dispute"" within the meaning of the term given in Section 2 (k). For a valid reference u/s 10(1) of the Act the Government was
required to from an opinion that an industrial dispute as between employers and employers, or between employers and workmen or between
workmen and workmen, existed or was apprehended. The opinion which the Government thus formed in the present case was not in regard to the
existence of any dispute or difference between the employers, that is the Petitioners, and their employers The preliminary step, namely, that of the
formation of an opinion with regard to the existence of an industrial dispute between the Petitioner employers and their employees not having been
taken, the reference made by the Government by its order dated 20th July 196.1 cannot be held to be legal. That order cannot be regarded as a
valid order referring an. industrial dispute between the Petitioner-employers and their employees. It cannot be regarded even as a valid order
referring a dispute between the Rashtriya Bidi Mazdoor Sangh and Bidi Mannfacturer''s Association as a dispute between such bodies is totally
outside the definition of the term ""industrial dispute"" given in Section 2 (k).
10. In the present case, the State of Madhya Pradesh was made a Respondent party, but no return has been filed on behalf of the State and there
is no material whatsoever to show that though in the order dated 10th July 1963 it was mentioned that an industrial dispute existed between the
Rashtria Bidi Mazdoor Sangh and the Bidi Manufacturer''s Association, Burhanpur, the Government in fact formed an opinion that an industrial
dispute existed between the Petitioner-employers and their employees.
11. The Tribunal has relied on certain observations made in the decision of the Travancore Cochin High Court in B. G. Walter v. Chief Secretary
AIR 1953 Tra. Cochin 286. In our judgment, they are not in point. In the Travancore Case the order passed by the Government u/s 10(1) of the
Act enumerated the names of the employers and expressly stated that an industrial dispute had arisen between chose employers and the workmen
employed by them. It appears that in that case an objection was taken that the employers'' Association was not entitled to represent those
employers who were not shown as parties in the order of reference. It was while dealing with this objection that it was observed by the Travancore
Cochin High Court that an association which is admittedly a representative of the employer factories is in law entitled to represent all the employers
and it is not necessary for such representation that the employers should also be ''co nomin'' parties to the reference. These observations do not in
any way land support to the proposition that u/s 10(1) read with Section 2 (k) of the. Act a dispute between an Association of employers and a
Union of employees can be referred to the Tribunal for adjudication.
12. The objection of the learned Counsel for the Respondent No. 2 that the Petitioners have no locus standi to file this petition as the order dated
20th July 1963 does not refer to the Industrial Tribunal for adjudication any dispute between them and their employees is without any substance. It
is true that the order dated 20th July 1963 does not refer any industrial dispute between the Petitioners and their employees. But the Industrial
Tribunal has in effect treated that order as one referring to it for adjudication an industrial dispute between the applicants and their employees. That
being so, the Petitioners are clearly entitled to question she jurisduction of the Industrial Tribunal to entertain the reference and make an award.
13. In the view we have taken of the order of reference dated 20th July 1963, it is not necessary to consider the objection put forward on behalf
of the Petitioners that a second reference on matters already adjudicated upon by an award dated 30th May 1963 was not competent.
14. For these reasons, our conclusion is that the dispute which the Government has purported to refer by its order dated 20th July 1963 is not an
industrial dispute""; and, that being so, the Tribunal has no jurisdiction to entertain the reference and make an award thereon. The result is that this
petition is allowed. The order of reference dated 20th July 1963 of the State Government u/s 10(1) of the Industrial Disputes Act is quashed, and
the award made by the Industrial Tribunal on 2nd May 1961 is also quashed. In the circumstances of the case, we leave the parties to bear their
own costs of this petition. The outstanding amount of the security deposit shall be refunded to the Petitioners.