Page 185 - DMGT306_MERCANTILE_LAWS_II

Mercantile Laws – II

Notes Individual Dispute whether Industrial Dispute?

Till the provisions of Section 2-A were inserted in the Act, it has been held by the Supreme Court
that an individual dispute per se is not industrial dispute. But it can develop into an industrial
dispute when it is taken up by the union or substantial number of workmen (Central Province
Transport Service v. Raghunath Gopal Patwardhan, AIR 1957 SC 104). This ruling was confirmed
later on in the case of Newspaper Ltd. v. Industrial Tribunal. In the case of Workmen of Dimakuchi Tea
Estate v. Dimakuchi Tea Estate, (1958) I. L.L.J. 500, the Supreme Court held that it is not that dispute
relating to “any person” can become an industrial dispute. There should be community of
interest. A dispute may initially be an individual dispute, but the workmen may make that
dispute as their own, they may espouse it on the ground that they have a community of interest
and are directly and substantially interested in the employment, non-employment, or conditions
of work of the concerned workmen. All workmen need not to join the dispute. Any dispute
which affects workmen as a class is an industrial dispute, even though, it might have been raised
by a minority group. It may be that at the date of dismissal of the workman there was no union.
But that does not mean that the dispute cannot become an industrial dispute because there was
no such union in existence on that date. If it is insisted that the concerned workman must be a
member of the union on the date of his dismissal, or there was no union in that particular
industry, then the dismissal of such a workman can never be an industrial dispute although the
other workmen have a community of interest in the matter of his dismissal and the cause for
which on the manner in which his dismissal was brought about directly and substantially affects
the other workmen. The only condition for an individual dispute turning into an industrial
dispute, as laid down in the case of Dimakuchi Tea Estate is the necessity of a community of
interest and not whether the concerned workman was or was not a member of the union at the
time of his dismissal. Further, the community of interest does not depend on whether the
concerned workman was a member or not at the date when the cause occurred, for, without his
being a member the dispute may be such that other workmen by having a common interest
therein would be justified in taking up the dispute as their own and espousing it. Whether the
individual dispute has been espoused by a substantial number of workmen depends upon the
facts of each case.
If after supporting the individual dispute by a trade union or substantial number of workmen,
the support is withdrawn subsequently, the jurisdiction of the adjudicating authority is not
affected. However, at the time of making reference for adjudication, individual dispute must
have been espoused, otherwise it will not become an industrial dispute and reference of such
dispute will be invalid.

(iii) Subject Matter of Dispute

The dispute should relate to employment or non-employment or terms of employment or
conditions of labour of any person. The meaning of the term “employment or non-employment”
was explained by Federal Court in the case of Western India Automobile Association v. Industrial
Tribunal. If an employer refuses to employ a workman dismissed by him, the dispute relates to
non-employment of workman. But the union insists that a particular person should not be
employed by the employer, the dispute relates to employment of workman. Thus, the
“employment or non-employment” is concerned with the employers failure or refusal to employ
a workman. The expression “terms of employment” refers to all terms and conditions stated in
the contract of employment. The expression terms of employment would also include those
terms which are understood and applied by parties in practice or, habitually or by common
consent without ever being incorporated in the Contract (Workmen v. Hindustan Lever Ltd., 1984
1 SCC 392).

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