M. M. Dutt, Sharma ( 1 ) IN this appeal, the appellant Reckitt and Colman of India Limited has challenged the propriety of the judgment of Basak J. whereby the learned Judge discharged the Rule Nisi obtained by the appellant on the application under Article 226 of the Constitution. ( 2 ) TWELVE drivers of the appellant company raised certain disputes inter alia with regard to their salary, allowance etc. , which were espoused by a Union being the Motor Workers Union, the respondent no. 3. The said Union was able to get a reference made by the State Government under S. 10 of the Industrial Disputes Act, 1947, to the Fifth Industrial Tribunal. The reference was for the purpose of adjudicating the following two issues: -3)whether the service condition of the drivers of cars owned by the company should be identical with those of other drivers in the Roll of the company4)whether termination of services of Sri Essamuddin, car driver, from 30. 10. 72 is justified To what relief, is he entitled ( 3 ) A preliminary objection was raised by the appellant before the Tribunal on a number of grounds. We are, however, concerned with only two grounds, viz. , (1) the reference on the face of it does not show the existence of relationship of employer and employees between the appellant and the car drivers and (2) the reference was invalid inasmuch as the dispute was not espoused by the Union of the workmen of the appellant company but by an outside Union. ( 4 ) THE Tribunal by its order no. 10 dated April 18, 1974, after considering the evidence adduced on behalf of both parties overruled the preliminary objection and held that the reference was quite valid, and that there was a relationship of employer and employees between the appellant company and the car drivers. The appellant company, being aggrieved by the said order of the Tribunal moved a Writ petition before this Court and obtained the Rule Nisi out of which this appeal arises. The learned Judge also overruled the contentions made on behalf of the appellant and affirmed the order of the Tribunal. Hence the appeal. ( 5 ) MR. The appellant company, being aggrieved by the said order of the Tribunal moved a Writ petition before this Court and obtained the Rule Nisi out of which this appeal arises. The learned Judge also overruled the contentions made on behalf of the appellant and affirmed the order of the Tribunal. Hence the appeal. ( 5 ) MR. Deb learned Advocate appearing on behalf of the appellant company, submits that the aggrieved car drivers are not the employees of the appellant company as their names are not borne on the Roll of the company. He submits that as the Tribunal was considering the question as a preliminary point, the company did not adduce sufficient evidence before the Tribunal in regard to that question. It is contended by him that the company should be granted a further opportunity to establish the absence of relationship of employer and employees between the appellant company and the car drivers. We are unable to accept this contention. It is true that the point was being decided as a preliminary point, but that did not mean that sufficient evidence should not be adduced by either party in support of their respective contentions. The company did not place before the Tribunal proper and sufficient materials in support of its contention that the aggrieved car drivers were not the employees of the company. On the other hand, the car drivers examined their witnesses who averred that they were all employees of the company. The Tribunal, after considering the evidence, came to the finding that the car drivers were the employees of the company. The finding of the Tribunal is a finding of fact and we are afraid, we cannot interfere with that finding. ( 6 ) IN this connection, Mr. Deb has urged that the reference as made by the State Government does not disclose any relationship of employer and employees between the appellant company and the car drivers. This contention also, in our opinion, has no substance. The State Government will not make any reference under S. 10 of the Industrial Disputes Act if there be absence of such relationship. As we read the issues that have been framed under the reference, it appears to us that such a relationship is apparent and/or implied between the company and the car drivers. ( 7 ) THE next point relates to the validity of the reference. As we read the issues that have been framed under the reference, it appears to us that such a relationship is apparent and/or implied between the company and the car drivers. ( 7 ) THE next point relates to the validity of the reference. It has been stated already that the cause of the aggrieved car drivers has been espoused by the respondent no. 3, the Motor Workers Union. It is not disputed that the respondent no. 3 is not a Union exclusively of the workmen of the appellant company. It is a Union of car drivers, mechanics, cleaner etc. of different establishments. Twelve car drivers are members of the respondent no. 3. It is contended on behalf of the appellant that as the cause of the car drivers has been espoused by the respondent no. 3 which is an outside union, the reference was invalid inasmuch as the workmen of the company have a union of their own. It may be stated here that there is no dispute that the workmen of the appellant company have a union of their own. The question, therefore, is whether, when there is the existence of a union of the workmen of the appellant company, espousing of the cause of the workmen, that is, the twelve car drivers by the respondent no. 3, an outside union, is permissible so as to enable the State Government to make a valid reference under S. 10 of the Industrial Disputes Act. In Workmen v. M/s. Dharampal Prem Chand, AIR 1966 SC 182 , it has been held by the Supreme Court that where there is no union of the workmen of any establishment, an outside union takes up the cause of the workmen working in the establishment it would not be reasonable to hold that the dispute does not become an industrial dispute because the union which has sponsored it is not the union exclusively of the workmen working in the establishment concerned. This decision, prima facie, supports the contention made on behalf of the appellant company. Mr. Sen Gupta, appearing on behalf of the respondent no. 3, however, submits that so far as the car drivers are concerned, there is no such union of such car drivers of the appellant company and, accordingly, if their cause be espoused or supported by an outside union that would transorm an individual dispute into an industrial dispute. Mr. Sen Gupta, appearing on behalf of the respondent no. 3, however, submits that so far as the car drivers are concerned, there is no such union of such car drivers of the appellant company and, accordingly, if their cause be espoused or supported by an outside union that would transorm an individual dispute into an industrial dispute. ( 8 ) THE question, therefore, is whether when a particular section of workmen of can establishment or particular category of workmen of the establishment has no union, if any dispute is raised by such workmen and that is sponsored by an outside union, it would be an industrial dispute or not Dharam Pal's case (supra) does not give any indication as to the same. Mr. Sen Gupta has, however, relied on certain decisions which will be stated presently. In Buckingham and Carnatic Mills Staff Union and Anr. 1959 (2) LLJ 338 the Madras High Court has made the following observations:the again, organization of workers on the basis of crafts is a well recognized form of organization. For example, engine-drivers on railways may form a union; the firemen may form another union; and, employees in railway-repair establishments may form a third union. Matters about which engine-drivers for instance may feel aggrieved and about which they may want to raise an industrial dispute may be of no interest to the other sections, and, they may not care to back their demands. Still when engine-drivers give notice of strike if certain things are not done, we cannot say that there is no industrial dispute merely because engine drivers form only a small percentage of the total employees of a railway. In fact, it would be in their power to very forcibly remind the management and the public that there is an industrial dispute by going on strike and stopping all trains. This decision to some extent supports the contention made on behalf of the respondent no. 3. It is, however, contended by Mr. Deb, learned Advocate appearing on behalf of the appellant, that the question is not whether a section of the workmen of the establishment concerned can form a union of join an outside union, but the question is whether any dispute that may be raised by a section of workmen will be considered as an industrial dispute. Deb, learned Advocate appearing on behalf of the appellant, that the question is not whether a section of the workmen of the establishment concerned can form a union of join an outside union, but the question is whether any dispute that may be raised by a section of workmen will be considered as an industrial dispute. He submits that any dispute which does not impede or affect the smooth operation of the industry in question will not bean industrial dispute. In the Madras case, referred to above, the dispute raised by the engine-driver will surely affect or impede the operation of the industry and, accordingly, such a dispute would be an industrial dispute and not an individual dispute. In the case of car drivers, there is no question of operation of the industry being affected by the raising of a dispute by them. The proposition of law as advanced by Mr. Deb finds support from the decision of this Court in Mitsubishi Shoji Kaisha Limited v. The Fourth Industrial Tribunal of West Bengal 76 Calwn 753. The proposition also seems to us of sum substances. The question, however, is whether the car drivers of the appellant company are in such a position as to affect or impede the smooth operation of the appellant company by raising a dispute. The question is pre-eminently a question of fact and requires evidence to be considered. The appellant company got ample opportunity to adduce evidence on this question before the Tribunal, but it had not availed itself of that opportunity, although it had examined one witness. The Tribunal has considered the question and it observed as follows: having regard to the nature of work in which they are employed in the light of the available facts and circumstances, it cannot but be held that the drivers of the company are a well defined and distinct category of workmen having their own distinct interest involved in the dispute. The aggrieved drivers constitute 2/3rd of the total number of drivers of the company. Production in industry is achieved by joint effort and team work in which the drivers also play an important part. Unless this was so, there was no point for the company engaged in business to keep so many cars and so many drivers. The aggrieved drivers constitute 2/3rd of the total number of drivers of the company. Production in industry is achieved by joint effort and team work in which the drivers also play an important part. Unless this was so, there was no point for the company engaged in business to keep so many cars and so many drivers. The aggrieved drivers did a particular type of work and thereby surely contributed to the production and progress of the company. That being so, it cannot but be held that the drivers have also the capacity to cause impediment to the working and business of the company. In coming to the above finding, the Tribunal had taken into its consideration the facts and circumstances of the case. That finding, in our opinion, is a finding of fact. Moreover, as argued by Mr. Sengupta and, in our opinion rightly, when a reference is made under S. 10 there is a presumption of existence of an industrial dispute. That presumption is no doubt a rebuttable one. But for the purpose of rebutting the same it requires evidence to be adduced by the employer. As has been stated already, the appellant company has not adduced any evidence in that regard. ( 9 ) WE are left with another question for our consideration. It is argued on behalf of the appellant that in order that a dispute can be an industrial dispute, it must be supported by an appreciable number of the workmen of the establishment concerned. It is submitted that as the aggrieved drivers were only 12 in number compared to the total number of workmen of the company which is one thousand, the dispute that has been raised by the said car drivers is only an individual dispute and not an industrial dispute. In our opinion, the drivers constitute a class by themselves and as they are in a position to affect the working of the company as found by the Tribunal, the dispute that may be raised by them will be an industrial dispute, provided a substantial number of them supports such dispute or the dispute is espoused by a union, may be an outside union, representing a substantial number of workmen of the company. Such workmen however, need not be the workmen in general, but the workmen forming into a class or distinct category rendering a particular type of service. Such workmen however, need not be the workmen in general, but the workmen forming into a class or distinct category rendering a particular type of service. It is true that the total number of drivers are only 18 and out of them 12 have raised the dispute supported by the respondent no. 3 but the question is whether these 18 persons should be taken to be the total number of workmen for the purpose of considering whether a substantial number of workmen have raised the dispute or the respondent no. 3 represents the substantial number of workmen of the company. As soon as it is held that the drivers form a distinct category and are in a position to affect the industry, in our opinion, the total number of workmen should be the total number of such workmen forming the particular class or category viz. , the drivers. In Bombay Union of Journalists and Ors, v. The Hindu Bombay and Anr. 1961 (2) LLj 436 , the Supreme Court seems to have taken the same view. In that case, the newspaper the Hindu had an office at Bombay since 1937. At the material time, the Hindu had, besides one Salivateeswaran, only nine employees - seven serving on the administrative side and two journalists - Venkateswaran and Tiwari. Salivateeswaran and Venkateswaran were members of the Bombay Union of Journalists; Tiwari the other journalist employee, was not a member of the union. The Bombay Union of Journalists is a Trade Union, the membership of which is open to all persons who depend for their livelihood upon the practice of the profession of journalism, including press photographers, artists etc, but it was not a union of the workmen of the Hindu. In that case, the Supreme Court made the following observation: -IN each case in ascertaining whether an individual dispute has acquired the character of an industrial dispute the test is whether at the date of the reference the dispute was taken up as supported by the union of the workmen of the employer against whom the disputes is raised by an individual workman or by an appreciable number of workmen. If Venkateswaran and Tiwari had prior to the date of the reference supported the cause of Salivateeswaran by their subsequent affidavits, the reference could not have been invalidated. The above observation is very significant. If Venkateswaran and Tiwari had prior to the date of the reference supported the cause of Salivateeswaran by their subsequent affidavits, the reference could not have been invalidated. The above observation is very significant. The Hindu had other employees but the working journalists were three in number, one of them had raised the dispute and according to the Supreme Court if out of the remaining two journalists one had supported Salivateeswaran, it would have been an industrial dispute. This supports the contention of Mr. Sen Gupta that the workmen who constitute a class for the particular type of service rendered by them will only be taken into account in considering whether a dispute has been raised by one of such workmen has been espoused by the appreciable number of them. In the instant case, out of 18 car drivers 12 have raised the dispute. There can be no doubt that 12 car drivers formed a substantial part of the total number of 18 drivers. Apart from whether the dispute has been espoused by any union or not, as a substantial number of workmen have raised the dispute, it is an industrial dispute. No other point has been argued in this appeal on behalf of either party. ( 10 ) FOR the reasons aforesaid, this appeal is dismissed, but in view of the facts and circumstances of the case, there will be no order for costs. ( 11 ) LET there be a stay of operation to this order for a period of four weeks. It is made clear that the Tribunal will be at liberty to go on with the proceedings and if any award is made by the Tribunal will be at liberty to go on with the proceedings and if any award is made by the Tribunal, it will not be published by the State Government. Sharma, J. : i agree. Appeal disposed of.