Delhi High Court
Hindustan Engineering And General ... vs Kapson Worldwide on 29 May, 2024
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 29th May, 2024
+ W.P.(C) 6827/2022 & CM APPL. 20772/2022
HINDUSTAN ENGINEERING AND GENERAL MAJDOOR
UNION THROUGH ITS GENERAL SECRETARY NARAYAN
SINGH ..... Petitioner
Through: Mr. Mahesh Srivastava and Mr.
Pankaj Srivastava, Advocates
versus
KAPSON WORLDWIDE ..... Respondent
Through: Mr. Anil Kumar Hajelay, Advocate
(Through VC)
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The instant petition under Articles 226 of the Constitution of India has
been filed on behalf of the petitioner challenging the impugned order dated
29th September, 2021 passed by learned Presiding Officer, Labour Court -
IX Rouse Avenue District Court, New Delhi ("Labour Court" hereinafter),
in LIR No. 2998/2019.
2. The brief facts relevant for the adjudication of the instant petition are
as under:
a. The petitioner ("petitioner/petitioner union/petitioner workmen"
hereinafter) is a Union registered under the Trade Unions Act,
1926 representing majority of the workmen working with the
respondent and the respondent ("respondent/respondent
management" hereinafter) is M/s Kapsons Worldwide.
b. It is stated by the petitioner that 60 workmen were employed by
the respondent to perform the job of tailor from the year 2008
onwards and these workmen were working with the respondent
at C-74A, Mayapuri Industrial Area, Phase - II, New Delhi
110064.
c. Thereafter, the respondent management decided to transfer its
workmen from the abovesaid address to M/s Kapson World
Wide, D-33, Sector 63, Noida, U.P. ("new address" hereinafter)
vide order dated 20th April, 2019.
d. The petitioner workmen claiming that no establishment of the
respondent existed at the new address raised their grievances of
being terminated under the garb of transfer and conciliation
proceedings commenced between the petitioner and the
respondent.
e. Subsequently, vide order dated 1st October, 2019, the Joint
Labour Commissioner referred the dispute to the learned
Labour Court for adjudication in the case bearing LIR No.
2998/2019, in the following terms:
"Whether the allege termination/denial of duties
without giving proper notice to the workmen Sh.
Uma Shankar Bhagat (Age - 48) S/o. Dinanath
Bhagat & 59 Other workmen (As per enclosed
annexure „A') under the garb of order/notice of
transfer from C- 47 A, Mayapuri Industrial Area,
Phase -II, Delhi to D - 33, Sector 63, Noida (U.P.)
by the Management of M/s Kapsons Worldwide,
especially when there exit no
factory/establishment/office of this management at
the place/address of transfer, is legal and justified
and if so, to what relief an individual workman in
this dispute are entitled and what directions are
necessary in this regard"
f. Against the order of the Joint Labour Commissioner, the
respondent filed a writ petition bearing WP(C) No. 904/2022
before this Court which was disposed of vide order dated 9 th
February, 2022 whereby, the Coordinate Bench of this Court
directed the presiding officer of the Labour Court to adjudicate
the reference by giving ample opportunity to both the sides to
present their case.
g. In the abovesaid industrial dispute, the petitioner filed statement
of claim on 29th September, 2021, and the respondent orally
raised an objection regarding the maintainability of the
reference.
h. Thereafter, the learned Labour Court passed an order dated 29 th
September, 2021 directing the individual workman to approach
the Joint Labour Commissioner to make the reference
individually as it is not case of collective dispute. The Labour
Court further directed the Joint Labour Commissioner to act in
terms of the said order.
i. Being aggrieved by the aforesaid impugned order, the petitioner
has approached this Court seeking setting aside of the same.
3. Learned counsel appearing on behalf of the petitioner submitted that
impugned order is bad in law and is liable to be set aside since the same is
contrary to Section 10 of the Industrial Disputes Act, 1947("ID Act/the Act"
hereinafter).
4. It is submitted that the present dispute is very specific as respondent
intended to terminate the services of the workmen under the garb of
transferring the workmen from C-74A Mayapuri Industrial Area, Phase - II
to D-33, Sector 63- Noida, U.P., knowingly that respondent does not have
any office or establishment at the given address.
5. It is submitted that Section 2(s) of the Act only relates to the
individual workman and not for many collective grievance of the workmen,
therefore, the impugned award is bad in law as while defining the term
„workman‟, the Section 2(s) of the I.D Act also includes workmen
collectively.
6. It is submitted that the Coordinate Bench of this Court while
disposing of the W.P.(C) 6470/2004 had held therein that there is no legal
bar in making a reference in respect of industrial dispute containing the
claim of several workmen together before labour court or the industrial
tribunal.
7. It is further submitted that this Court had while deciding the abovesaid
writ petition had directed the Presiding Officer of the Labour Court to
adjudicate the reference by giving ample opportunity to both the sides.
8. It is submitted that the learned Labour Court proceeded with the
matter without directing the respondent to file the written statement, and
refused to adjudicate the dispute on the ground that it is an individual dispute
and passed the impugned order.
9. It is submitted that the action of the respondent is contrary to law as
well as the provisions contained under the Industrial Employment (Standing
Orders) Act, 1946.
10. It is submitted that in view of Section 2A of the Act, no espousal is
required by the Union or any fellow workmen, and even so, the cause of the
workmen has been properly espoused by the Union and the General
Secretary, thereto, is empowered to file the present writ petition.
11. Therefore, in view of the above submissions, it is submitted that the
instant petition may be allowed and the reliefs be granted as prayed for.
12. Per Contra, the learned counsel appearing on behalf of the
respondent-management has vehemently opposed the instant petition
submitting that the same is devoid of any merit and hence is liable to be
dismissed.
13. It is submitted that the present writ petition is a gross abuse and
misuse of the process of law, the petitioner has not come with clean hands
before this Court and has suppressed material particulars.
14. It is submitted that the present petition is not maintainable in law since
the petitioner has not raised any substantial question of law.
15. It is submitted that the instant petition is not maintainable since the
learned Presiding Officer has not passed any wrong order by directing the
workmen to file individual statement of claims, since the ID Act empowers
the Labour Court to adopt its own evolved procedure for adjudicating upon a
dispute.
16. It is submitted that the petitioner has concealed material fact as it was
aware that the respondent has sold its property situated at C-74A Mayapuri
Industrial Area, Phase - II, New Delhi way back in 2020 and shifted to a
new unit in D-22, Sector-63, Noida, Gautam Buddha Nagar.
17. It is further submitted that this fact was well within the knowledge of
the petitioner as it was a party in W.P.(C) No. 904/2022 before this Court
which was disposed of vide order dated 9th February, 2022, and despite such
knowledge the petitioner has not changed the address so that the service of
summons could not be affected upon the respondent.
18. It is submitted that the writ petition is even otherwise not maintainable
as the petitioner union has no locus standi to file the present writ petition on
behalf of all the 60 workmen because out of said 60 workmen, Sarvesh
Kumar, Ram Avtar, Satish, Hari Lal and Pankaj Thakur have already filed
their separate claims of gratuity before the controlling authority under the
Payment of Gratuity Act, 1972 through another union namely Delhi Parades
Kamgar Ekta Sangh which implies that these workmen are no longer
members of the petitioner union and hence the petitioner has no authority to
file any petition or application etc. on behalf of these workmen.
19. It is submitted that the present writ petition is not maintainable as it is
based on wrongful interpretation of the impugned order whereby the learned
Labour Court had directed the workmen to submit individual claim
statements considering the possibility of delay in collectively adjudicating
the reference for all 60 workmen hence, it is wrong in arguing that the
learned Labour Court has refused to adjudicate the reference.
20. It is submitted that the petitioner has not filed the minutes of meetings
pertaining to espousal, and has failed to mention time, date, month and even
year in support of the espousal to the cause of these workmen, which shows
that the petitioner has failed to properly espouse the dispute. Therefore, it is
submitted that in the absence of espousal, the petitioner union has no locus
to file the present petition on behalf of the workmen concerned.
21. It is submitted that the petitioner‟s reliance on the decision of this
Court in W.P.(C) No. 6470/2004 is misplaced as the facts of the case were
not similar to the present case. Further, even in that case vide order dated
14th November, 2006, this Court held that it is for the Labour Court to decide
the manner in which a claim is to be proceeded with, i.e., whether a joint
statement of claim could be entertained or each individual workman should
be asked to file his own individual claim.
22. It is submitted that in view of para 10 of the order dated 9 th February,
2022 of this Court, the question as to whether any factory or establishment
of the respondent exists at the new address or not is to be determined by the
presiding officer of the learned Labour Court, and the non-existence of such
establishment/factory cannot be proceeded with as an admitted fact.
23. It is submitted that the services of all the workmen were transferred by
the respondent in consonance with the clauses of their appointment letters
and with the Certified Standing Orders of the company. It is further
submitted that prior to the said transfer, the respondent had rented premises
at the new address and set up tailoring machines there.
24. Therefore, in view of the foregoing submissions, it is submitted that
the instant petition may be dismissed.
25. Heard the learned counsel appearing on behalf of the parties and
perused the record.
26. It is the case of the petitioner that the impugned order is bad in law as
the learned Labour Court failed to appreciate that a reference made to it in
respect of multiple workmen may be adjudicated and considered collectively
in respect of all of them. It is stated that the Labour Court is required to
adjudicate the issue in view of the order dated 9 th February, 2022 of this
Court. Moreover, under Section 2(s) the definition of the workman also
includes workmen collectively, and a reference regarding termination of
services of workmen, similarly employed, under the garb of transfer has to
be adjudicated by the Labour Court, especially since the same has been
espoused properly by a Union.
27. In rival submissions, the respondent submits that the learned Labour
Court is competent to adopt its own manner of adjudicating dispute, whether
individually or collectively. Moreover, the present dispute has not been
properly espoused by the union and therefore the union cannot represent the
workmen before this Court. Further, the definition of workman as per
Section 2(s) of the Act does not encompass workmen as a group, and
therefore, the learned Labour Court was right in directing that separate
references may be made in respect of each of the workmen.
28. Therefore, the issue before this Court is to decide whether the
impugned order deserves to be set aside by interference of this Court under
Article 226 of the Constitution of India, and in order to adjudicate upon this,
this Court deems it necessary to frame the following issue:
"Whether separate references are needed for the same subject
matter in respect of each of the workmen party to the
industrial dispute in order for adjudicating the same?"
29. Now before delving into the merits of the instant petition in order to
adjudicate upon this issue, it is pertinent to state the settled position of law
regarding scope of the term workman as has been used under the Act, and
whether a reference in respect of multiple workmen may be made to a
Labour Court for adjudication.
30. While discussing the ambit of „industrial dispute‟ as envisaged under
the Act, OP Malhotra's The Law of Industrial Dispute Vol. 1, 6th Edition
(Edited by Prof. EM Rao), at page 200, is reproduced herein below :
"The first point, therefore, to be noticed, which is perhaps self-
evident, is that in the phrase 'employer and workmen', the
plural may include the singular, on either side or any
permutation of singular or plural, the masculine including the
feminine."
31. Further, in a 3-Judge Bench decision, the Hon‟ble Supreme Court in a
case titled Manager, Hotel Imperial v. Chief Commr., 1959 SCC OnLine
SC 160 has held to the effect that where the dispute is of general nature
relating to the terms of employment or conditions of labour as a body, it is
not necessary to mention in the order of reference the names of the particular
workmen who might have been responsible for the dispute. The relevant
extract from the said judgment is reproduced below:
"3. Equally, we see no force in the other ground of attack,
namely, that the reference is bad because it does not specify
how many of the 480 workmen of thirty different categories
were involved in the dispute. It is in our opinion unnecessary
for the purposes of Section 10 where the dispute is of a general
nature relating to the terms of employment or conditions of
labour of a body of workmen, to mention the names of
particular workmen who might have been responsible for the
dispute. It is only where a dispute refers to the dismissal etc. of
particular workmen as represented by the union that it may be
desirable to mention the names of the workmen concerned. In
this case, the dispute was also about workmen to whom notice
of dismissal had been given and in that connection the names of
the workmen concerned were mentioned in the order of
reference. We may in this connection refer to State of
Madras v. C.P. Sarathy [(1952) 2 SCC 606 : (1953) SCR 334]
where a similar attack on the competence of a reference was
made on the ground of vagueness. In that case the reference
was in these terms:
"WHEREAS an industrial dispute has arisen between the
workers and managements of the cinema talkies in the Madras
City in respect of certain matters:
AND WHEREAS in the opinion of His Excellency the Governor
of Madras, it is necessary to refer the said industrial dispute for
adjudication;"
Thereafter followed the order of reference, which did not even
contain the terms of reference. The order however indicated
that "the Industrial Tribunal may, in its discretion, settle the
issues in the light of a preliminary enquiry which it may hold
for the purpose and thereafter adjudicate on the said industrial
dispute". The Commissioner of Labour was requested to send
copies of the order to the managements of cinema talkies
concerned. It was held there that "the reference to the Tribunal
under Section 10(1) of the Industrial Disputes Act, 1947, cannot
be held to be invalid merely because it did not specify the
disputes or the parties between whom the disputes arose". It
was further held that "the Government must, of course, have
sufficient knowledge of the nature of the dispute to be satisfied
that it is an industrial dispute within the meaning of the Act, as,
for instance, that it relates to retrenchment or reinstatement.
But, beyond this no obligation can be held to lie on the
Government to ascertain particulars of the disputes before
making a reference under Section 10(1) or to specify them in
the order".
4. The present reference as compared to the reference in the
case cannot be called vague at all. Here the parties to the
dispute are clearly specified, namely, (i) the management of the
hotel, and (ii) its workmen. The nature of the dispute is also
specified in the terms of reference. It was in our opinion
entirely unnecessary to mention in the order of reference as to
who were the workmen who were responsible for the dispute.
We are therefore of opinion that this attack on the around of
vagueness also fails. There is no force in this appeal and it is
hereby dismissed with costs to Respondent 3. In view of the fact
that more than three years have passed since the reference was
made, we trust that the Additional Industrial Tribunal will now
dispose of the matter as expeditiously as it can."
32. The Hon‟ble Supreme Court in the aforesaid decision, upheld the
decision of the Circuit Bench of Punjab and Haryana High Court in
Manager, Hotel Imperial v. Chief Commr. 1956 SCC OnLine Punj 208, in
respect of which such appeal had arisen wherein it was observed that the
appropriate government should make a reference in writing indicating the
parties to a dispute and the point of controversy and the parties might be
indicated individually or collectively with reasonable clearness. The relevant
extract from the said judgment is reproduced below:
"17. In R. v. National Arbitration Tribunal, [1951] 2 A.E.L.R.
428, Lord Goddard, C.J. held a dispute between one employer
and one workman to be within the definition of "trade dispute"
which is defined in the English Act in language almost identical
with section 2(k) of the Indian Act. The reference is made under
section 10(1) which reads:--
"10(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,--
(a) * * *
(b) * * *
(c) refer the dispute or any matter appearing to be connected
with, or relevant to, the dispute to a Tribunal for adjudication:
Provided that where the dispute relates to a public utility
service and a notice under section 22 has been given, the
appropriate Government shall, unless it considers that the
notice has been frivolously or vexatiously given or that it would
be inexpedient so to do, make a reference under this sub-section
notwithstanding that any other proceedings under this Act in
respect of the dispute may have commenced".
18. and, therefore, whenever the Government forms the opinion
that an industrial dispute exists or is apprehended, it can make
a reference to the Tribunal. The section itself does not require
that any parties to the dispute should be indicated. Counsel,
however, relies on a judgment of the Supreme Court in State of
Madras v. C.P. Sarathy, [1952] 4 F.J.R. 431, where it was
observed--
".......and it would involve no hardship if the reference also is
made in wider terms provided, of course, the dispute is one of
the kind described in section 2(k) and the parties between
whom such dispute has actually arisen or is apprehended in the
view of the Government are indicated either individually or
collectively with reasonable clearness".
19. In my opinion this requirement has been complied with. The
dispute is stated in the reference to be between the management
of the Hotel Imperial on one side and the workers of the Hotel
as represented by the Union on the other which is an indication
with "reasonable clearness".
33. Further, in addition to the abovesaid judgments, relying on the
decision by the Hon‟ble Supreme Court in the case titled National Iron &
Steel Co. Ltd. v. State of W.B., 1967 SCC OnLine SC 131, it can be
deduced that in exercise of the powers under Section 10, the appropriate
Government may even make one order of reference with respect to a number
of employees or establishments, if there is a functional integrality between
them or, if it is necessary, for the sake of uniformity.
34. With respect to the need of espousal in order for a dispute of an
individual workman to qualify as an industrial dispute, the Hon'ble Supreme
Court in J.M Jhadav Vs Forbes Gokak Ltd 2005 (3) SCC 202, has held
that.
"there is no particular form prescribed to effect the espousal.
Generally, Union passes resolutions, however sometimes proof
of support by the Union may also be available aliunde. It would
depend upon the facts of each case."
35. With regard to the objectives of the Act in the context of collective
bargaining between the management and the workmen, OP Malhotra's The
Law of Industrial Dispute (supra), on page 202 states as follows:
"The policy behind this Act is to protect the workmen as a class,
against unfair labour practices. What imparts to the dispute of
a workman, the character of an 'industrial dispute', is that it
affects the rights of the workmen as a class. Griffith CJ said:
The word 'industrial'...as used to the nature of quality of the
disputes,....denotes two qualities which distinguish them from
ordinary private disputes between individuals, namely (i) that
the dispute relates to industrial matters, and (ii) that on one
side at least of the dispute, the disputant are a body of men
acting collectively and not individually.
In other words, 'an element of collective bargaining, which is
the essential feature of the modern trade union movement, is
necessarily involved in industrial adjudication'. It is the
community of interest of the class as a whole-class of employers
or class of work men-which furnishes the real nexus between
the dispute and the parties to the dispute. In the words of Isaac
J:
The very nature of an 'industrial dispute', as distinguished
from an individual dispute, is to obtain new industrial
conditions, not merely for the specific individuals then
working from the specific individuals then employing them,
and not for the moment only, but for the class of employees
from the class of employers... It is a battle by the claimants,
not for themselves alone.
Notwithstanding the fact that the language of s 2(k) is wide
enough to cover a dispute between an employer and a single
employee, the scheme of the Act appears to contemplate that the
machinery provided therein should be set in motion to settle
only such disputes as involve the right of workmen as a class
and that a dispute touching the individual rights of a workman,
was not intended to be the subject of an adjudication under the
Act.
The term 'industrial dispute' conveys the meaning that the
dispute must be such as would affect large groups of workmen
and employers, ranged on opposite sides. Even a single
employee‟s dispute may develop into an industrial dispute,
when it is taken up by a union or a number of workers who
make a concerted demand for redress. The applicability of the
Act to an individual dispute, as distinguished from a dispute
involving a group of workmen, is excluded, unless the workmen,
as a body or a considerable section of them. make common
cause with the individual workman."
36. Upon perusal of the aforementioned judicial decisions, it can be
inferred that as per the spirit of the statute, as well as the strict letter of law
which is followed in procedure, the term workman as used in the Act would
refer to workmen, in plurality too. It is further observed that, it has long been
in ordinary practice that after a common dispute pertaining to multiple
workmen has been properly espoused by a union or otherwise, the Labour
Courts or the adjudicating authorities, as the case may be, adjudicate the
reference collectively for all workmen involved therein.
37. In order to further appreciate the above stated judicial dictum in the
context of the issue involved in the present petition, it is important to analyse
the findings of the impugned order dated 29th September, 2021. The relevant
paragraphs of the impugned Award are reproduced herein below for
reference:
"After hearing both the parties it is noted that the reference is
filed collectively for 60 workers by the office of Joint Labour
Commissioner. Ld. AR for management has submitted that
reference for each individual workman is to be filed separately.
On perusal of case file it is seen that the case of individual
workman is of illegal termination and their monetary dues. Ld.
AR for the management has submitted that as per Section.2 (s)
of Industrial Disputes Act, 1947 the workman is mentioned for
individual workman and not for many workmen. Each case has
to be filed separately.
Since the dispute pertains to illegal termination of each
workman whose date of joining and their conduct as to
termination has to be appreciated separately along with
monetary dues. Therefore, it is desirable that the dispute of
individual workman be taken separately. Under Sub-Section
(2A) of Section 10 of Industrial Disputes Act, 1947 the
collective dispute may also be considered but in some case
there has to be, question of fact and law between the parties
failing which trial of collective dispute may delay the case of
such workman whose dispute can be decided earlier. Hence
copy of this order be sent to Joint Labour Commissioner
concerned along with copy of reference, so that matter may be
referred keeping in view the fact that where question of fact
involved in the case are. different or does not involve common
question of law then they may be taken as separate reference.
The workman ·may follow up necessary action with the office of
Joint Labour Commissioner"
38. Upon perusal of the aforementioned Award, it can be observed that
even after noting that collective dispute may also be considered in context of a
reference under Section 10 of Act, the learned Labour Court has ordered that
separate references may be presented for each of the workmen in order to
adjudicate the dispute in time.
39. From a bare perusal of the records relating the factual matrix in the
present petition, it becomes clear that the learned Labour Court has erred in
its findings stated above.
40. It is apparent on the face of it that the dispute at hand pertains to
termination of 60 workmen under the garb of transfer from establishments,
and since the said orders are same in nature, this Court is of the view that
there is no impediment in collective adjudication of the disputes raised by
the workmen.
41. The law regarding adjudication of the dispute for more than one
workman is clear where the above cited judicial dictum makes it crystal
clear that the disputes, involving same question can be answered by the
labour Court by passing a common award.
42. Therefore, this Court is of the firm view that the reasoning provided
by the learned Labour Court does not hold any water and the impugned
order, being contrary to the settled position of law, is liable to be set aside.
43. In view of the foregoing discussion, the impugned order dated 29th
September, 2021, passed by the learned Labour Court is set aside and the
matter is remanded back to the Labour Court.
44. The Labour Court is, therefore, directed to consider the reference as
made by the appropriate Government and to adjudicate upon the same after
giving due opportunity to the parties to present their case.
45. Accordingly, the instant writ petition stands disposed of along with
pending applications, if any.
46. Order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
MAY 29, 2024
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