ABHILASH TAILORS v. INDUSTRIAL TRIBUNAL — 1983 DIGILAW 43 (KER)

Judgment :- 1. The important question that arises for determination in this original petition is whether an Industrial Tribunal has got jurisdiction to implead workers when the Union which represented them did not pursue the matter and was declared ex parte. The petitioner is a registered partnership firm engaged in tailoring. It is said that this concern was opened on 4-6-1975 and closed on 6-6-1978. There were 13 employees in this concern. According to the petitioner, the closure was due to the non-co-operation of the workers under the leadership of the second respondent. There were protest and strike following the closure of the business concern and after conciliation before the District Labour Officer, Alwaye, and on the basis of a report made by him to the Government, the Government was pleased to refer the following issues for adjudication: "(1) Closure of Abhilash Tailors, Ernakulam from 6-6-78. (2) Bonus for 1976-77 to the workers." The workers were said to have been represented by the second respondent and the reference was made to the first respondent Tribunal. When the reference came up before the Tribunal, the Union and the management filed statements, counter-statements re joinders and also documents. Thereafter the Union did not appear, and therefore the Union was declared ex parte, and the dispute was kept for passing a final ex parte award. At that stage 12 employees out of the 13 employees filed an application before the Tribunal for getting themselves impleaded. The Tribunal stating that "it will not be in the interests of justice if the petition is dismissed, because that will only make the workers run again for getting their grievances referred", allowed the application impleading the twelve workers. Ext. P1 is that order. 2. The petitioner seeks to quash Ext. P1 order on the ground that the order is one passed without jurisdiction as the individual workers have no locus standi to get themselves impleaded when they are represented by a union; that the petitioners were members of the second respondent union and as such the ex parte order was binding on them; and that in an industrial dispute individual workers have no place or status and that as long as they are represented by Union, the Union alone can represent them. The counsel also contended that the impleadment is against the very spirit of collective, bargaining and also against the principles recognised in S.36 of the Industrial Disputes Act, hereinafter called the Act. 3. The learned advocate appearing for the workers on the other hand, submitted that under S.18 of the Act the Tribunal has power to summon parties to appear in the proceedings as party to the dispute and in any view, the Tribunal has got inherent power to implead new parties and therefore the order has only to be sustained. 4. The counsel for petitioner in support of his contention cited Ram Prasad Viswakarma v. Industrial Tribunal, Patna (1961 (1) LLJ. 504). The counsel argued that an individual workman can at no stage be a party to an industrial dispute independent of the Union, if any, representing them and that adding workmen individually or even in group, as has been done in this case, will be against the spirit of collective bargaining and will be encouraging workmen to create disputes affecting industrial peace. 5. S.18 speaks of persons on whom settlements and awards are binding. Sub-section (3) of S.18 states: "(3) A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section 3-A of S.10-A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on: (a) all parties to the industrial dispute; (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, Arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause; Thus under S.18(3) (b), a Tribunal has been empowered to summon parties other than the parties to the dispute. It is clear from the wording in the section that this sub-section confers power on the Tribunal to summon all other parties i. e., persons other than the parties to the dispute, as parties to the dispute. It is clear from the wording in the section that this sub-section confers power on the Tribunal to summon all other parties i. e., persons other than the parties to the dispute, as parties to the dispute. Although the section empowers the Tribunal or the Labour Court, as the case may be, only to summon other parties as enjoined under clause (b) of sub-section (3) of S.18; the case law on the point shows that by virtue of the power conferred under this sub-section the Tribunal can also add or implead parties other than those who are parties to the dispute. This Court in F. A. C. T. Employees Association v. F. A.C. T Ltd. (1974 KLT. 474) has held that parties may be summoned to appear in the proceedings before the Tribunal in terms of S.18(3) (b), and that the Tribunal has the inherent power to implead persons as parties if the Tribunal is duly moved for such purpose. 6. The attack made by the counsel for the Petitioner is that the Tribunal having declared the Union ex parte ought to have proceeded further and passed an award with the materials already on record. When once a dispute has been referred to the Tribunal it can terminate only in passing an award. Under R.23 of the Kerala Industrial Disputes Rules, 1957, a Tribunal can, for sufficient cause set aside after notice to the opposite party the ex parte decision either wholly or in part on an application made within 15 days of the ex parte decision. R.22 states that if without good cause shown, any party to proceedings, before a Board, Court, Labour Court, Tribunal, or Arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal or Arbitrator may proceed as if he had duly attended or had been represented. It is therefore clear from a reading of R.22 and 23 together, that the Tribunal has got ample jurisdiction to pass an ex parte award. If a Tribunal feels that for the purpose of passing an effective award or an award of binding nature, it can summon other parties as provided for in clause (b) of sub-section 3 of S.18 of the Act. But at the same time the Tribunal has no jurisdiction or power to add parties thereby enlarging the scope of reference. If a Tribunal feels that for the purpose of passing an effective award or an award of binding nature, it can summon other parties as provided for in clause (b) of sub-section 3 of S.18 of the Act. But at the same time the Tribunal has no jurisdiction or power to add parties thereby enlarging the scope of reference. If the Tribunal finds that a party to an industrial dispute named in the reference does not wholly represent the interest of the employer or employee as such, other persons who are interested in the employer or employee, as the case may be, may be joined. The test is whether the addition of party is necessary to make adjudication effective and enforceable. In other words, parties whose presence is not necessary for passing an effective and binding award, cannot be summoned under this section. Summoning of parties or adding of parties should not be for enlarging the scope of reference itself. The leading case dealing with the powers of a Tribunal under S.18(3Xb) of the Act is Anil Kumar Upadhaya v. P. K. Sarkar (1961 (II) LLJ. 459). The procedure and guidelines to be followed for the exercise of the power under S.18(3)(b) have been summarised in this case as follows: xx xx xx xx From the provisions of clause (b), sub-section (3) of S.18 of the Act, it is to be implied that the tribunal has power to summon parties other than parties to the order of reference, to appear in the proceedings as parties to the dispute. This has a reference to proper and necessary parties, as such parties need not necessarily belong to the category of employer or workmen. The power to be implied from the provisions of clause (b) is to summon such a party. Clause (b) of sub-section (3) of S.18 clearly contemplates that not only there should be such a summons but that the party summoned should have an opportunity to show that he has been summoned without proper cause. Such an opportunity is not given when the party is added as a party without any notice to him and he is compelled to join in the whole reference proceedings. It is not necessary to add such a party at all, but it is sufficient to summon such a party to appear in the proceedings as party to the dispute. Such an opportunity is not given when the party is added as a party without any notice to him and he is compelled to join in the whole reference proceedings. It is not necessary to add such a party at all, but it is sufficient to summon such a party to appear in the proceedings as party to the dispute. However, after the summons has been served, or a show cause notice why such a summons should not be served and he has an opportunity of showing cause, it would not be illegal to put him formally on the record as a party if the tribunal thinks that it would be more convenient for the purposes of the adjudication proceedings." In Ram Prasad Vishwakarma v. Industrial Tribunal, Patna (1961 (I) LLJ. 504), the Supreme Court has held as follows: "It is now well settled that a dispute between an individual workman and an employer could not be an industrial dispute as defined in S.2 (k) of the Industrial Disputes Act unless it is taken up by a union of the workman or by a considerable number of workmen. This view recognizes the great importance in modern industrial life of collective bargaining between the workmen and the employer. It is well known how before the days of collective bargaining labour was at a great disadvantage in obtaining reasonable terms of contracts of service from his employer. As trade unions developed in the country and collective bargaining became the rule, the employers found it necessary and convenient to deal with the representatives of workmen, instead of individual workman, not only for the making or modification of contracts but also in the matter of taking disciplinary action against one or more workmen and as regards all other disputes." It was further observed: "The necessary corollary to this is that the individual workman is at no stage a party to the industrial dispute independently of the union. The union or those workmen who have by their sponsoring turned the individual dispute into an industrial dispute, can therefore claim to have a say in the conduct of the proceedings before the tribunal." But, in the same decision the Supreme Court has stated: "While it will be unwise and indeed impossible to try to lay down a general rule in the matter, the ordinary rule should be that such representation by an officer of the trade union should continue throughout the proceedings in the absence of exceptional circumstances which may permit the tribunal to permit other representatives of the workman concerned." So there cannot be any doubt in the light of the above decisions that the general rule is that a workman before a Tribunal can be represented by a union. But in exceptional circumstances a tribunal may permit other representative of the workman to represent him. The question here is whether there is any such exceptional circumstances in this case. The counsel for the petitioner submits that there is no such circumstances warranting impleadment of the workmen. It may be noted that 12 out of the 13 workers under the management have been impleaded in the case and that the dispute mainly relate to the closure of the concern. It is seen that 12 workers have put in a petition jointly. There is force in the argument of the petitioner that the proper procedure open to the workers was to get the ex parte order set aside and then pray for appropriate reliefs. It is not disputed that the union was representing the workers in the dispute before the Tribunal and the union declared ex parte. It is true that there was no petition filed by the workmen to set aside the ex parte order. But the main issue for consideration consequent on the closure is the right of the workmen to get compensation. This apart, in order to pass an award of binding nature the presence of the workers before the Tribunal is necessary. In view of this, it cannot be said that adding of these workmen as parties was completely wrong. The counsel for the petitioner submitted that the workmen were already parties to the reference and there is no question of impleading or adding them. Technically therefore the order of the Tribunal is wrong as contended by the petitioner. In view of this, it cannot be said that adding of these workmen as parties was completely wrong. The counsel for the petitioner submitted that the workmen were already parties to the reference and there is no question of impleading or adding them. Technically therefore the order of the Tribunal is wrong as contended by the petitioner. The further question is whether on the facts and in the circumstances of the case, this court should interfere with the order. Now as stated earlier, ample powers have been given to the Tribunal under S.18(3)(b) of the Act. if parties other than the parties to the reference can be summoned I do not find anything wrong in summoning the parties if the Tribunal wants to hear them. Therefore, I do not wish to interfere with the order passed by the Tribunal. This original petition is disposed of as above. The Tribunal will pose of the proceedings before it as expeditiously as possible.