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M/s. Mangalam Publications (India) Pvt. Ltd. v/s V. Thampy Eipe & Another

    O.P.No.24714 of 2000 (P)

    Decided On, 13 February 2006

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE KURIAN JOSEPH

    For the Petitioner: U.K. Ramakrishnan, P.V. Lohithakshan, Advocates. For the Respondents: Shakeela (G P).



Judgment Text

Whether the grievance of an individual workman is liable to be adjudicated in a reference under Section 10(1)(c) of the Industrial Disputes Act, 1947 is the question to be decided in this case. Section 10(1)(c) reads as follows:-


"10. Reference of dispute to Boards, 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 -


(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication."


The industrial dispute which is liable to be adjudicated by the Labour Court, is defined under Section 2(k) of the Act reads as follows: -


"2(k) "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."


The dispute should be (1) between the employees and employers/ (2) between employers and workmen/ (3) between workmen and workmen/ (4) and the dispute should be regarding (a) employment or non-employment/ (b) the terms of employment/ (c) the conditions of labour of any person. It is fairly clear that the industrial dispute contemplated under Section 2(k) is a collective industrial dispute. Any grievance of a workman in an industry has normally a collective dimension and if that is resolved through the collective effort, neither the management nor other workmen need be dragged to unnecessary litigation. Otherwise, it would lead to the situation of every workman either opting for or being forced to getting his grievance redressed in an adjudication. That would certainly affect the industrial peace. Individual grievances unless sponsored through the Union or when there is no Union through the medium of an appreciable number of workmen in the establishment, cannot be adjudicated as an industrial dispute in a reference under Section 10(1)(c). The only exception provided is under Section 2A which reads as follows:-


"2-A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his 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 of workmen is a party to the dispute."


Where there is a question of discharge, dismissal, retrenchment or termination of service of an individual workman, it is deemed to be an industrial dispute under Section 2A. That is a situation where the workman may not get the assistance of the Union or appreciable number of workmen and hence the exception. All other industrial disputes can be adjudicated only collectively. The Industrial Disputes Act, 1947, under the definition of the expression "workman" as appearing under Section 2(s) has excluded an individual grievance from the scope of Section 2(k). Section 2(s) reads as follows:


2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, ....."


The Supreme Court of India as clearly as in 1961 had occasion to consider the issue in Bombay Union of Journalists v. The Hindu, Bombay, 1961 (II) LLJ 436, wherein it was held as follows: -


"The applicability of the Industrial Disputes 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 a common cause with the individual workman."


2. The issue referred for adjudication as per Ext.P1 order issued by the Government of Kerala under Section 10(1)(c) of the Act is "classification of Mangalam Publications Establishments as per Bachawat Wage Board recommendations and the arrear amount entitled to Sri. Thampy Iype, Section Officer, (Rtd.) for the period from 1-1-1988 to 31-12-1995". It is clear that the claim for arrears arises only if there is a re-classification in terms of the Bachawat award. Whether the Establishment was liable to be re-classified or not is not an individual grievance. The scope is collective in nature. Hence in the absence of a move from the part of a Union or an appreciable number of workmen, a dispute is not maintainable. The Labour Court in the impugned Ext.P4 order held that Section 10(1) of the Industrial Disputes Act is intended to resolve a dispute regarding the right asserted and the right disputed. There is no quarrel with the proposition. But the dispute which is capable of adjudication under Section 10(1) of the Act should be an industrial dispute coming either under Section 2(k) at the instance of the Union or appreciable number of workmen or under Section 2A in t

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he matter of discharge, dismissal, retrenchment or termination of an individual workman. As already stated above the dispute referred for adjudication at the instance of the individual workman does not come under Section 2A since there is no question of discharge, dismissal or termination is involved in the case. The question pertains to reclassification of the establishment and the consequential benefit. Therefore, the stand of the Labour Court regarding the maintainability of such individual dispute is not in accordance with law. Accordingly the original petition is allowed and Ext.P4 order is quashed.
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