CASE ANALYSIS ONNEWSPAPER LTD., ALLAHABAD VS INDUSTRIAL TRIBUNAL, U.P

SUBMITTED BY:-VINEETH REDDY VAKITI, BA. LLB (HONS.)4th SEMESTERROLL NO.:- 2013129,

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAM

ACKNOWLEDGEMENTI would like to express my heartfelt gratitude towards my labour law teacher Mr Bharat Kumar, sir for giving me a wonderful opportunity to select such an interesting topic. I would also like to thank him for his co-operation and support, which he provided me by guiding me in the making of the project.Last but not the least I would also like to thanks my family, friends and almighty for their moral support without which this project would not have been a success.

Table of contents

Introduction............................................................................................... 04 Fact of the case.......................................................................................... 06 Central issues of the case............................................................................ 07 Concept of retrenchment........................................................................... 09 Judgement................................................................................................. 11 Conclusion................................................................................................. 14 Bibliography.............................................................................................. 15

INTRODUCTIONCase Newspaper ltd. Allahabad vs. Industrial tribunal Uttar Pradesh (AIR 1960 SC 1328) is related to Industrial dispute act, 1947. Bench of this case is Hon'ble Mr. Justice Pralhad Balacharya Gajendragadkar.Now I want to give some idea about Industrial Dispute Act, 1947According to this act Industrial disputes are conflicts, disorder or unrest arising between workers and employers on any ground. Such disputes finally result in strikes, lockouts and mass refusal of employees to work in the organization until the dispute is resolved. So it can be concluded that Industrial Disputes harm both parties employees and employers and are always against the interest of both employees and the employers.Definition of industrial disputeThe industrial dispute act enacted with the main object to provide machinery for the investigation and settlement of dispute arising between the employer and the workmen working in an industry as defined in the act. Section 2(k) defines industrial dispute as[footnoteRef:1] [1: Dr.S.K.Puri, An introduction to Labour and Industrial Laws,9th edition,2005, pg-422]

a) Any dispute or difference between employers and employees or b) Between employers and workmen; orc) Between workmen and workmen which is connected with; d) The employment or non-employment; ore) The terms of employment; orf) With the conditions of labour;g) Of any person.Now coming to the concerned case this case is mainly about who can raise dispute-an individual or a body of workmen. This act covers what is the nature and character of industrial dispute. The act has been enacted to bring about the harmony in the conflicting interests of employers and employees. The employees as a group or body are interested to protect their interest in relation to the employer. Whether an individual workmen aggrieved by the action of an employer can raised an industrial dispute has been subjected to a lot of controversies. The act states that a workman can raise a dispute. The matter came up before the appellate tribunal in a number of cases.[footnoteRef:2] The labour appellate tribunal held in this case that an individual could raise an industrial dispute. Some of the high courts held the contrary view. The controversy was set at rest by the Supreme Court in this case. [2: Kandan textile ltd vs. The industrial tribunal (AIR 1951 Mad. 616)]

Basically in this case Supreme Court held that a dispute between an employer and a single workman does not fall within the definition of industries dispute. But, if the workman as a body or a considerable section of them make a common cause with the individual workman then such a dispute would be an industrial dispute. A dispute arises between a workmen and employer if espoused by a body of workers assumes the nature and character of industrial dispute as define in section 2(k). Therefore it was only a collective dispute which could constitute an industrial dispute but word collective did not mean substantial majority. For a dispute to constitute a industrial dispute it is not a requisite condition that it should be sponsored by recognised union or all the workmen of an industrial establishment should be party to it.[footnoteRef:3] Unions whether registered or unregistered could raise an industrial dispute provided they were connected with the industry concerned. Where the cause of an individual worker was espoused by an union, it was immaterial whether the employee concerned was a member of the union or not when the dispute arose[footnoteRef:4]. Neither it was essential that the cause had the majority support. The essential requisite in such a case is that there must be community of interest[footnoteRef:5]and the cause of the aggrieved workmen is supported by a substantial or appreciable number of workmen who in turn are interested in their own welfare[footnoteRef:6]. From the above discussion it appears that the workmen must be member of the sponsoring union on the date of the dispute but once the dispute has been referred, it will not cease to be an industrial dispute if the union withdraws the support. [3: State of Bihar vs. Kripashankar Jaiswal (AIR 1961 SC 304)] [4: Western India match co. Ltd vs. Western India match co. Workers union (AIR 1970 SC 1205)] [5: Shamsuddin vs. State of Kerela 1961 I L.L.J. 77 (Ker)] [6: Mrs.P. Somesundaram vs. Labour Court (1970)I L.L.J. 558 (A.P)]

FACTS OF THE CASEThe appellant, Newspapers Ltd., Allahabad, publishes three newspapers i.e., the Leader, the Bharat and the Sangam. The Sangam was an unprofitable publication, and due to financial stringency caused by the loss incurred on it the appellant had to close its publication. In consequence the appellant retrenched thereof its employees, the respondents. On behalf of the said employees an industrial dispute was raised and it was referred by the State Government for adjudication under its notification issued on January 15, 1953, under Sections 3, 4 and 8 of the U. P. Industrial Disputes Act, 1947, and in pursuance of Clause 10 of the Government Order of March 15, 1951. The industrial tribunal held that the appellant was not guilty of victimisation, but nevertheless it found that in retrenching respondents 3 to 5 the appellant had not followed the industrial principle of 'first come last go'. According to the tribunal respondents 6 to 8 who were junior to respondents 3 to 5 should have been first retrenched; and since no satisfactory explanation was given as to why respondents 3 to 5 were retrenched instead of respondents 6 to 8 the tribunal directed the appellant to reinstate respondents. Against the award thus made by the tribunal the appellant preferred an appeal but the said appeal was dismissed and the order for reinstatement was confirmed. Meanwhile the services of respondents 6 to 8 were terminated by the appellant. That pending the proceedings before the appellate tribunal respondents moved the Allahabad High Court by a writ petition. By this petition they challenged the validity of the award passed by the industrial tribunal directing the reinstatement of respondents 3 to 5. Subsequently the appellant itself filed before the said High Court its own writ petition. Both the writ petitions were heard and were dismissed. Respondents 6 to 8 preferred an appeal against the dismissal of their petition, but the said appeal was dismissed on the ground that the said respondents were not affected by the tribunal's order. The other Appeal preferred by the appellant against the dismissal of its writ petition was considered on the merits and was ultimately dismissed. It is against this latter decision that the appellant has come to this Court by special leave.

CENTRAL ISSUES OF THE CASEWhether only a registered body can sponsor a workman's case to make it an industrial dispute?The above suit has arisen due to the retrenchment of three employees resulting into an industrial dispute on the basis of the principle of 'first come last go'WHEN INDIVIDUAL DISPUTE BECOMES INDUSTRIAL DISPUTE EVEN WITHOUT THE SUPPORT OF NON REGISTERED TRADE UNION:The Section 2(k) of the Industrial Disputes Act, 1947 provides that a dispute between employer and workmen i.e. plural form has been used, the Supreme Court of India specifically observed that before insertion of section 2(A) of the Act an individual dispute could not per say be an industrial dispute, but it could become one if taken up by the trade union or a number of workmen. The provision of the Act leads to the conclusion that its applicability to an individual as oppose to dispute involving a group of workmen is excluded unless it acquires the general characteristic of an industrial dispute viz., the workmen as a body or a considerable section of them make common cause within the individual workmen.

Like industry this term also has been interpreted and analysed differently in different case situations by the Courts. Some of the Principles to judge the nature of these terms were evolved by Courts such as Kundan Textiles Vs Industrial Tribunal[footnoteRef:7]. Here the Court relied on Convey Vs Wade[footnoteRef:8] ; Jumburnna Coal Mines Vs Victorian Coal Mines Asson[footnoteRef:9]; George Hudson Ltd., Vs Australian Timber Workers Union[footnoteRef:10]; D.W. Banerji Vs P.R. Mukerji[footnoteRef:11]; CPT Service Ltd. Vs R.G.Patwardhan[footnoteRef:12]; Dimakuchi Tea Estate Vs the Management[footnoteRef:13]; Bombay Union of Journalists Vs The Hindu[footnoteRef:14]; Workmen Vs Dharampal Premchand[footnoteRef:15]. [7: AIR 1951 Madras 616.] [8: 1909 A.C.506.] [9: 1905) 6 CLR 309, 332] [10: 32 CLR 413, 441.] [11: AIR 1953 SC 58.] [12: 1957 I L.L.J.27.] [13: AIR 1958 SC 353.] [14: AIR 1958 SC 353.] [15: 1965 I L.L.J. 668.]

The following are some of the principles laid to examine the nature of the dispute by the above said Courts. 1. The dispute must affect large group of workmen or employers who have community of interest and the rights of these workmen must be affected as a class in the interest of common good. In other words, considerable section of employees should necessarily make common cause with the general lot. 2. The dispute should invariably be taken up by the industry union or by an appreciable number of workmen. 3. There must be a concentrated demand by the workers for redress and the grievance becomes such that if turns from individual complaint into the general complaint. 4. The parties to the dispute must have direct and substantial interest in the dispute, i.e., there must be some nexus between the union which espouses the cause of the workmen and the dispute. Moreover, the union must fairly claim a representative character. 5. If the dispute was in its inception an individual dispute and continued to be such till the date of its reference by the Government for adjudication, it could not be converted into an industrial dispute by support to the reference even of workmen interested in the dispute.

INTRODUCTION OF SECTION 2A:The whole controversy ended in the year 1965 and the situation was changed in cases of dismissals and retrenchments when the Parliament amended the Industrial Dispute Act, 1947 and added section 2A, according to which, even the individual disputes relating to termination of service would now be called industrial disputes under the Act, notwithstanding whether they have been taken up by any union or by a number of workmen. The section provides: Where any employer discharges, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union or workmen is a party to the dispute. But in disputes concerning other matters, the situation still remain as was decided by the judiciary before this amendment. Now, certain issues still fall outside the scope of section 2 (A) and remain undecided. They are: Whether a dispute, which by its nature seems to be a dispute involving only a few persons and is of no substantial significance to the industry as a whole, could be termed an industrial dispute simply because it has been taken up by union or by an appreciable number of workmen. Whether an outside union is competent to espouse the cause of workmen working in a particular establishment. If it is, then what should be the qualifications of that union and under what circumstances could it espouse the cause, it is enough that it possesses a representative character, notwithstanding other considerations, within the industry, for the maintenance of industrial peace and harmony. It reasonably justified that the workmen of an industry who have a dispute with their employer become members of an outside union after the cause of action arose, simply to make that union qualified to espouse their cause.

In such issues Justice and fair play require that a dispute should be branded as an industrial dispute within the meaning of the Industrial Dispute Act, 1947 if only it affects the operations of the industry in any manner, irrespective of the persons involved. If it is likely to create a grave situation and if it shows impact adversely on production and industrial discipline, it has to be taken up as an industrial dispute, no matter whether the union takes it up or not. Espousal by outside unions should as far as possible be discouraged because that gives leverage to outside people to put unnecessary interference in an industry where they have no locus standi otherwise. It would be better if the Parliament defines the term industrial dispute, in a detailed manner so as to leave little scope for diverse interpretations.

CONCEPT OF RETRENCHMENT MEANING AND DEFINITIONSection 2(oo) of the Industrial Dispute Act, 1947 defines the term retrenchment as:-"Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include[footnoteRef:16]- [16: H.L. Kumar Labour and Industrial Law 6th edition, 2012 pg 2357]

(a) Voluntary retirement of the workman; or (b) Retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(bb) termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

(c) Termination of the service of a workman on the ground of continued ill- health.

CONDITIONS PRECEDENT TO RETRENCHMENT OF WORKERS

Section 25(F) of the Industrial Dispute Act, 1947 states the conditions necessary to be fulfilled before the retrenchment of workmen.

No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) The workman has been given one months notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2(for every completed year of continuous service) or any part thereof in excess of six months; and

(c) Notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.

JUDGEMENTThe Judgment was delivered by: GAJENDRAGADKAR, J.

1. The appellant Newspapers, Ltd., Allahabad, publishes three newspapers viz., the Leader, the Bharat and the Sangam. The Sangam was an unprofitable publication and due to financial stringency caused by the loss incurred on it, the appellant had to close its publication. In consequence the appellant retrenched three of its employees who are respondents. On behalf of the said employees an industrial dispute was raised and it was referred by the State Government for adjudication under its notification issued on 15 January, 1953 under S. 3, 4 and 8 of the Uttar PradeshIndustrial Disputes Act, 1947and in pursuance of Cl. 10 of the Government Order of 15 March, 1951.

2. The industrial tribunal held that the appellant was not guilty of victimization, but nevertheless it found that in retrenching respondents 3 to 5 the appellant had not followed the industrial principle of "first come last go." According to the tribunal respondents 6 to 8 who were junior to respondents 3 to 5 should have been first retrenched; and since no satisfactory explanation was given as to why respondents 3 to 5 were retrenched instead of respondents 6 to 8 the tribunal directed the appellant to reinstate respondents 3 to 5. Against the award thus made by the tribunal the appellant preferred an appeal but the said appeal was dismissed and the order for reinstatement was confirmed. Meanwhile the services of respondents 6 to 8 were terminated by the appellant.

3. It appears that pending the proceedings before the Appellate Tribunal respondents 6 to 8 moved the Allahabad High Court by a writ petition No. 243 of 1953. By this petition they challenged the validity of the award passed by the industrial tribunal directing the reinstatement of respondents 3 to 5. Subsequently the appellant itself filed before the said High Court its own writ petition No. 1421 of 1954. Both the writ petitions were heard and were dismissed by Chaturvadi, J.

4. Respondents 6 to 8 preferred an appeal against the dismissal of their petition; but the said appeal was dismissed on the ground that the said respondents were not affected by the tribunals order. The other appeal No. 36 of 1955 preferred by the appellant against the dismissal of its writ petition was considered on the merits and was ultimately dismissed. It is against this latter decision that the appellant has come to this Court by special leave. It is unfortunate that in the paper book prepared in this case none of the documents relating to the appellant's writ petition No. 1421 of 1954 has been printed.

5. It appears that documents in regard to the companion writ petition filed by respondents 6 to 8 have through mistake been printed. That being so, it was very difficult for Mr. S. P. Sinha, for the appellant, to make any point by reference to the record of the proceedings. He, however, contended that the courts below were in error in rejecting the appellant's argument that the dispute in regard to the retrenchment of respondents 3 to 5 was not an industrial dispute. According to him it was an individual dispute which had not been sponsored either by any union or even by a body of workmen. On this point there is a concurrent finding of both the Courts against the appellant. Chaturvedi, J. has recorded his conclusion that on the evidence adduced before him he was satisfied that there was an association known as Leader Press Karamchari Sangh and that the cause of respondents 3 to 5 had been sponsored by the said association. The same finding has been confirmed by the appellate court.

6. Then it was urged that the association which sponsored the case of respondents 3 to 5 was an unregistered body and that made the reference invalid. Both the courts have held, and rightly, that it is not necessary that a registered body should sponsor a workman's case to make it an industrial dispute. Once it is shown that a body of workmen, either acting through their union or otherwise had sponsored a workman's case it becomes an industrial dispute.

7. Mr. Sinha further contended that no attempt had been made to prove this fact before the industrial tribunal. The obvious answer to this contention is that no plea had been apparently raised before the tribunal that the dispute was not an industrial dispute in the same sense in which the argument was sought to be raised in the present proceedings. Then Mr. Sinha attempted to contend that there was no scope for applying the principle of 'first come last go' because respondents 3 to 5 were working in a department which was distinct and separate from the department in which respondents 6 to 8 were working.

8. In our opinion, this point cannot be allowed to be raised for the first time at this stage. It is a question of fact and it should have been raised in the original writ proceedings themselves. Mr. Sinha fairly conceded that this point had not been considered in either of the two judgments and that must be because it was not argued before the Courts.

9. That being so, we are satisfied that there is no substance in this appeal. It is accordingly dismissed with costs.

CONCLUSIONIt appeared in the said suit that documents in regard to the companion writ petition filed by respondents. the courts below were in error in rejecting the appellant's argument that the dispute in regard to the retrenchment of respondents were not an industrial dispute. Accordingly, it was an individual dispute which had not been sponsored either by any union or even by a body of workmen. On this point there is a concurrent finding of both the courts against the appellant concluding that on the evidence adduced before the court, the court was satisfied that there was an association known as Leader Press Karamchari Sangh and that the cause of respondents had been sponsored by the said association. The same finding has been confirmed by the appellate court.Then it was urged that the association which sponsored the case of respondents were an unregistered body and that made the reference invalid. Both the courts have held, and rightly, that it is not necessary that a registered body should sponsor a workman's case to make it an industrial dispute. Once it is shown that a body of workmen, either acting through their union or otherwise had sponsored a workman's case it becomes an industrial dispute.It was further contended that no attempt had been made to prove this fact before the industrial tribunal. The obvious answer to this contention is that no plea had been apparently raised before the tribunal that the dispute was not an industrial dispute in the sense in which the argument was sought to be raised in the present proceedings.Hence it was said that there was no scope for applying the principle 'first come last go' because respondents were working in a department which was distinct and separate from the department in which respondents were working thus, this point cannot be allowed to be raised for the first time at this stage. It is a question of fact and it should have been raised in the original writ proceedings themselves. The court fairly conceded that this point had not been considered in either of the two judgments and that must be because it was not argued before the courts. That being so, the appeal was dismissed.

BIBLIOGRAPHY

Bare act Industrial Dispute Act,1947Books referred An introduction to Labour and Industrial Laws by Dr. S. K. Puri 9th edition,2005 The law of industrial disputes by O P Malhotras 6th edition, 2004 Labour and Industrial Law by H.L. Kumar 6th edition, 2012 Website referred Westlaw. in Manupatra.com indiankanoon.org

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