When a workman has failed to establish that he was an office bearer or member of a Union, espousal by the Union stands not proved

2019 LLR 287

MADHYA PRADESH HIGH COURT

Hon’ble Mr. Sanjay Yadav, J.

W.P. No. 2099/2015, Dt/–29-1-2019

Dashram Singh Bhadoriya

vs.

Official Liquidator, Jiwajirao Cotton Mills Ltd.

ESPOUSAL – Scope of – A industrial dispute when not that of dismissal, removal, termination or retrenchment – Workman raised an industrial dispute claiming certain dues – Labour Court dismissed his claim holding that the dispute raised by him is not of dismissal, removal, termination or retrenchment but other dues – Workman has failed to prove if his dispute was espoused either by the Union or workmen of his establishment – Workman challenged the award in writ petition – Held, any industrial dispute, except of dismissal, removal, termination or retrenchment, needs espousal either by workmen of the establishment or Union – Since the workman has failed to establish that workman was an office bearer or member of a Union, the conclusion arrived at by the Labour Court cannot be faulted with.

Para 3

For Petitioner: Mr. Devendra Sharma, Advocate.

For Respondent: Mr. K.N. Gupta and Mr. J.D. Suryavanshi, Sr. Counsels with Mr. Kunal Suryavanshi, Advocate.

IMPORTANT POINTS

Under Section 2A of the Industrial Disputes Act, 1947, a workman can raise an industrial dispute only in respect of dismissal, removal, termination or retrenchment and not in respect of any other dispute.

An industrial dispute raised by the workman claiming certain dues is not covered under Section 2A but under Section 36 of the Act for which espousal either by the workmen of the same establishment or by Union is mandatory requirement.

When a workman has failed to establish that he was an office bearer or member of a Union, espousal by the Union stands not proved.

Judgment

Sanjay Yadav, J.—Shri Devendra Sharma, learned counsel for the petitioner. Shri K.N. Gupta, learned Senior Counsel and Shri J.D. Suryavanshi, learned Senior Counsel with Shri Kunal Suryavanshi, learned counsel for the respondent.

Challenge is to an award dated 17/02/2014 passed in a reference case under the Industrial Disputes Act, 1947.

The labour Court was in seisin with the following disputes referred to it by the appropriate Court for its adjudication:—

^^D;k Jh n’kLFk flag firk Jh cStukFk HknkSfj;k ,oa lsokfu;kstd ds eè; fu;qDr ,oa fu;ksDrk ds laca/ LFkkfir Fksa\ vkSj D;k vks|ksfxd fookn vf/fu;e 1947 ds varxZr deZdkj dh ifjf/ esa vkrk gS\ ;fn gkW rks muds ns; LoRoksa ds Hkqxrku ds laca/ es fu;ksDrk dks D;k funsZ’k fn;s tkuk pkfg;s\**

Be it noted that it was the individual who had raised the dispute for settlement of his own dues. The labour Court on the findings that the petitioner could not established being a member of Union and that he was employed with the respondent answered the reference against the petitioner holding that:—

^^17- vkS|ksfxd fookn vf/fu;e 1947 ds vuqlkj /kjk 2&, ds vUrxZr lsok izFkd ds laca/ es deZdkj Lo;a lajk/u dk;Zokgh izkjEHk dj ldrk gS rFkk ‘ks”k vkS|ksfxd fookn ds fy;s] ftudk fd mYys[k vuqlqph&2] vuqlqwph&3] vuqlwph&4 ,oa vuqlwph&5 esa gS] ds fy;s ;wfu;u dh vf/d`r gSA O;fDrxr deZdkj mDr vf/fu;e fookn jSt ugha dj ldrk gSA

18- vr% mijksDr lk{; ds vk/kj ij ;g fuf.kZr fd;k tkrk gS fd jrhjke ;kno etnwj dkaxzsl baVd ;wfu;u ds vè;{k@mikè;{k ugha gS rFkk n’kjFk flag mDr ;wfu;u ds lnL; ugha gS A

19- vkosnd lk{kh dzekad&1 ,oa vkosnd lk{kh dzekad&2 us ;g dFku fd;k gS fd vkonsd lk{kh dzekad&2 vukosnd laLFkku dk deZdkj FkkA ;|fi lk{; esa vkosnd n’kjFk flag us dksbZ Hkh nLrkost fu;kstu ls lacaf/r izLrqr ugha fd;s gSA ;|fi f}rh;i{k ls fu;kstu vof/ ds osru o gktjh jftLVj rFkk Hkqxrku laca/h nLrkost izLrqr djk;s tkus ds fy;s fuosnu fd;k x;k Fkk A U;k;ky; }kjk vknsf’kr fd;s tkus ds ckn Hkh mDr nLrkost f}rh;i{k us izLrqr ugha fd;s gSa A ;|fi izFkei{k n’kjFk flag us Lo;a dh lk{; esa Li”V :I ls dFku ugha fd;k gS fd mlus fdl fnukad ls fdl fnukad rd f}rh;i{k ds v/hu deZdkj dh gSfl;r ls dk;Z fd;k gS A vr% mijksDr foospuk ds vk/kj ij ;g Bgjk;k tkrk gS fd n’kjFk flag vukosnd@f}rh;i{k dk deZdkj ugha Fkk A**

Sub-section (1) of Section 36 of 1947 Act envisages that:

“(1) A workman who is a party to dispute shall be entitled to be represented in any proceeding under this Act by—

(a) any member of the executive or office bearer of a registered trade union of which he is a member;

(b) any member of the executive or other office bearer of a federation of trade unions to which the trade union referred to in clause (a) is affiliated;

(c) where the worker is not a member of any trade union, by any member of the executive or other office bearer of any trade union connected with, or by any other workman employed in, the industry in which the worker is employed and authorized in such manner as may be prescribed.”

In Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal, Patna, AIR 1961 SC 857, it is held:—

“9. It is not unreasonable to think that Sec. 36 of the Industrial Disputes Act recognises this position, by providing that the workman who is a party to a dispute shall be entitled to be represented by an office of a registered trade union of which he is a member. While it will be unwise and indeed impossible to try to lay down a general rule in the matter, the ordinary rule should in our opinion be that such representation by an officer of the trade union should continue throughout the proceedings in the absence of exceptional circumstances which may justify the Tribunal to permit other representation of the workman concerned. We are not satisfied that in the present case, there were any such exceptional circumstances. It has been suggested that the Union’s’ Secretary Fateh Singh himself had made the complaint against the appellant which resulted in the order of dismissal. It has to be observed however that in spite of everything, the Union did take up this appellant’s case against his dismissal as its own. At that time also, Fateh

Singh was the Secretary of the Union. If are Union had not taken up his cause, there would not have been any reference. In view of all the circumstances, we are of opinion, that it cannot be said that the Tribunal committed any error in refusing the appellant’s prayer for representation through representatives of his own choice in preference to Fateh Singh, the Secretary of the Union.”

Though an exception is carved out to the general contained under Section 36(1) vide Section 2A of Act of 1947 that against termination, dismissal, removal or retrenchment, an individual workman can raise the dispute. However, the case at hand is not that of dismissal, removal, termination or retrenchment, but is for claim of individual dues, which can only be espoused through Union or any other workman employed in the establishment. As the petitioner failed to establish that said Ratiram Yadav was an office bearer of a Union and that the petitioner is member of said Union, the conclusion arrived at by the labour Court being based on material evidence on record cannot be faulted with.

Consequently, petition fails and is dismissed. No costs.