Definition of Industrial Dispute

The Industrial Disputes Act, 1947, is an effort on the part of the government to normalize industrial relations in India. This legislation ispremeditated to ensure industrial peace by recourse to a given procedure and machinery for investigation and settlement of industrial disputes. Its foremost objective is to provide for anunbiased and equitable settlement of disputes by negotiations, conciliation, mediation, voluntary arbitration and compulsory adjudication instead of by trial of strength through strikes and lockouts. But, when the industrial disputes act came, labour disputes had gained new grounds, large and scary. There were clashes between workmen and employers on several occasions. The word industrial dispute express meaning to the everyday person that the dispute must be such as would affect large groups of workmen and employers ranged on opposite sides on some general question on which each group is bound together by community of interests, such as wages, bonuses, allowances, pensions and so on. Even with reference to a business that is carried on, one would hardly think of saying that there is industrial dispute where the employee is dismissed by his employer and dismissal is questioned as wrongful; but at the same time, having regard to modern conditions of the society where capital and labour have organized themselves into groups for the purpose of fighting their disputes and settling them on the basis of the theory that union is strength, and collective bargaining have come to stay, a single employees case might develop into industrial dispute, when it is taken up trade union of which he is a member and there is concerned demand by the employees for redress. Such trouble may arise in a single establishment of a factory. It may well arise also in such a manner as to cover the industry as a whole in a case where grievance passes from region of individual complaint into general complaint on behalf of all the workers in the industry. Such widespread extension of labour unrest is not a rare phenomenon but is of frequent concern. The purpose of the researcher under this project assignment is to put a meticulous view on section 2(K) under the act, which in definition may have look small but holds larger proportions. It becomes subsequently essential to interpret and understand the terms used in the Act with as wide import as reasonable possible.

Industrial Dispute: A Dispute of Substance

“Trade Dispute exists, wherever a ‘difference’ exists and ‘difference’ can exist long before the parties become locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should fight from an opening”. [1]

What we can assume from the quotation above is the meaning of dispute or difference that Lord Denning tried to convey, which is something of real substance and not of personal quarrel or some grumbling agitation [2] .

“The term ‘Industrial Dispute’ predicts a real and substantial difference which has some element of persistency, and likely if not adjusted, then has the potential to endanger the industrial peace of the community”. [3] The usage of the phrase ‘dispute’ or ‘difference’ is one of the phrases which have been used, to determine the nature of a dispute, industrial or otherwise.

A ‘dispute’ or ‘difference’, in an industrial context can only arises when a demand is made by workmen on the employer and rejected by him. [4] The definition of ‘industrial dispute in section 2(k) of the Industrial Disputes Act 1947, shows that where there is a dispute or difference between the parties contemplated by the definition and that dispute of difference is connected with the employment or non-employment or terms of employment or with the conditions of labour of any person, there comes into existence an industrial dispute. In other words only those controversies would fall within the definition “in which the opponents are seeking to raise definite disputes of substance in which both the parties are themselves directly and substantially interested”. [5] Hence, a dispute or difference arises only when a demand is raised by the workmen and rejected by an employer. [6] Further it must be grievance felt by workmen which the employer is in a position to remedy. The contention must be present; it must be a grievance of the workmen themselves and it must be a grievance which the employer as an employer is in a position to put right [7] .

In Sindhu Resettlement Corporation vs. Industrial Tribunal [8] , the Supreme Court has held that mere demand asking appropriate to refer the dispute for adjudication, without a dispute being raised by workmen with their employer regarding such demand can’t become an ‘Industrial Dispute’. Hence an Industrial Dispute cannot be said to exist until and unless a demand is made by workman or workmen on the employer and it has been rejected by him.

A Division Bench of Delhi High Court in ‘Fedders Lloyd Corporation Ltd vs. Lieutenant Governor [9] went a step further in holding that a demand by the workmen must be raised first on the management and rejected by it before an Industrial dispute can be said to arise and ‘exist’ and that the making of such a demand to conciliation officer and its communication by him to the management, who rejected the demand is not sufficient to constitute an “Industrial Dispute”. To summarize it further, if the workmen do not make a demand on the employer no ‘industrial dispute’ will come into existence.

Industrial Dispute: Whether Vocal or Inscribed

No Doubt, for the existence of an Industrial Dispute, there should be a demand by the workmen and refusal to grant it by the management. “How the demand should be raised cannot be a legal notion of fixity and rigidity. The Grievance of the workmen and demand of its redressal must be communicated to the management. But the Act nowhere contemplates that an industrial Dispute would come into existence in any particular detailed method. Nor is there any particular way in which the refusal should be communicated. For coming into existence of an industrial dispute, a written claim is not a prerequisite.To put it otherwise, an oral demand and its rejection will as much bring into existence an industrial dispute as a written one.

Industrial Dispute: A Struggle of Interest

It is not necessary that an Industrial Dispute be a conflict of interest or economic dispute; it may also be a “conflict of rights or a “legal dispute”. This is to say, while an industrial dispute is most usually thought of a dispute concerned with what the terms of employment ought to be i.e. with the negotiation of new terms of employment (conflict of interest) a dispute is equally “connected with” the terms of employment if its concerned with the interpretation of existing terms or with their enforcement (conflict of right). However, the expression “dispute or difference” is not intended to include mere metaphysical, theoretical or philosophical controversies between employers and employees or between workmen and workmen; it will also not include mere ideological differences. [10] Thus a workmen may have ideological differences with the employers, a workmen may feel sympathetic for an employee in his own industry or in another industry; a workmen may feel seriously agitated about the conditions of the labour outside our own country; but it’s absurd to suggest that any of these would entitle a workmen to raise an ‘industrial dispute’ within the meaning of section 2(k) of the act. A dispute, whether a particular union alone is competent to represent them is obviously not an industrial dispute. If the dispute is indefinite or vague, it might disqualify itself as an ‘industrial dispute’, “by reason of its own indulgence”.

Employers And Workmen: The Industrial Dispute’s Main Characters

Employers and Workmen, these two characters relationship becomes a bone of contention, and then the cycle of industrial dispute starts. The point which should be noted here is that in order for ‘industrial dispute’ should begin; one of the parties must be an “employer” or a class of “employers”. The phrase “employer” and “workmen” the plural may include the singular on either side or any permutation of singular or plural, the masculine including the feminine. The expression, employer, has to be understood to mean any industrial employer. The definition of “ industrial dispute” is worded in very wide terms and unless they are narrowed by the meaning given to the word ‘workmen’, it would seem to include all ‘employers’, all ‘employment’ and all ‘workmen’, whatever the nature or possibility of the employment may be [11] . The words of the definition may be paraphrased thus: ‘any dispute which has connection with the workmen being in or out of service of employment. Therefore, in order to determine whether a controversy or difference or a dispute is an ‘industrial dispute or not, it must be determined first that whether the workmen concerned or the workmen sponsoring his cause satisfy the condition S.2(S) of the act.

Whether an Individual Dispute Tantamount to Industrial Dispute

The definition under section 2(k) only talks about industrial dispute , but whether a dispute by an individual workmen would be an industrial dispute, for this, there lies a good deal of judicial deviation.According to Kandan Textile vs. Industrial Tribunal [12] which positioned one line of disagreement is that, a dispute which concerned only with the rights of individual workmen, could not be held to be an industrial dispute. It was there held that though the language in the definition under section 2(k) was wide enough to include such a dispute, but the provision of section 18suggested that something more than an individual dispute between the workmen and the employer was meant by industrial dispute. The Industrial Disputes Act never intended to provide machinery for redress by dismissed workmen [13] .

The second line of argument comes from case of Newspaper Ltd vs. IT [14] , according to which a dispute between an employer and a single employee could be an Industrial Dispute. The Third and final argument came from Bilash Chandra vs. Balmer Lawrie& Co [15] ., under which it was said that a dispute between an employer and a single employee can’t per se be an industrial dispute, but it may become one if it is taken up by union or number of workmen.

In the Case of Central Provinces Transport Services vs. Patwardhan [16] , the Supreme Court favored the third line of argument. The Court in Central Provinces said that the language of sec 2(k) is wide enough to cover a dispute between an employer and a single employee. The scheme of Industrial Dispute Act does appear to contemplate that the machinery provided therein should be set in motion to settle only disputes which involve the rights of workmen as a class and that dispute touching the individual rights of a workmen was not intended to be the subject of an adjudication under the act when the same had not been taken up by union or number of workmen.

In Newspaper Ltd. vs. IT [17] , the Court opined that Industrial Disputes Act is based on achieving collective amity between labour and capital by means of conciliation, mediation and adjudication. The object of this act is the promotion of the industrial peace and prevention of any strikes or lockout. Thus it becomes clear that provisions of this act states clearly that it’s applicability to an individual dispute as opposed to dispute involving a group of workmen is excluded unless it acquires the general characteristics of an industrial dispute viz. the workmen as body or considerable section of them make common cause with the individual workmen.

The law has however has been amended over this issue, through the insertion of section 2-A, in the year of 1965. Which basically provide that were any employer discharges, dismisses, retrenches, or otherwise terminates the service of individual workmen and on that any disputed arises between employer , that dispute shall be deemed to be an industrial dispute notwithstanding that no other workman, nor any union of workmen is party to that dispute.

Whether Advocacy of Dispute by Trade Unions amounts to Industrial Dispute

The other point of concern in Individual-Industrial Dispute argument is that to determine that who in reality has sponsored the dispute, meaning, whether the majority or a large portion of the workmen employed in the particular industry are concerned in the dispute or not. Hence, the meaning of Industrial Dispute under section 2(k) refers to a situation where dispute of workmen is raised by union employed in that particular industry.

In the case of Bombay Union of Journalists vs. The “Hindu” [18] , the Supreme Court observed that 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 support by the union of the workmen of the employer against whom the dispute is raised by an individual the workmen or by an appreciable number of workmen. In order, therefore, to convert an “individual dispute” into an “industrial” one, it has to be established that it had been taken up by the union of employees of the establishment or by an appreciable number of the employees of the established.

In the case of Bombay Union of Journalist vs. The Hindu [19] , the Supreme Court commenting on status of the union of journalists held that, the Bombay Union of Journalists is a union not of employees of one employer, but of all employees in the Industry of Journalism in Bombay and support of the case by union, was not able to convert individual dispute into industrial one. Supreme Court said that the dispute only can acquire the nature of Industrial Dispute only when it was proved that, before it was referred, it was supported by the employees of the ‘Hindu’ Bombay or by appreciable number of employees. The line of thinking that came from this case was that persons who seek to support the case of a workmen must themselves be directly and substantially interested in the dispute and those persons who are not employer can’t be regarded as person having direct and substantial community interest and hence just because they support the particular matter, they are unable to convert an individual dispute into an industrial one.

Supreme Court again made it clear and quite elaborately on the issue of ‘industrial dispute’ and its backing by a trade union in the case of Workmen vs. DharampalPremchand [20] . Under this case, out of 45 employees, 18 had been dismissed and there was no evidence to show that employees have a union of their own. Under the scenario, the Supreme Court held that “it would be difficult to hold that though the number of employees dismissed is eighteen, they can’t raise a dispute by themselves in a formal manner [21] and therefore Supreme Court gave its decision under following guidelines.

A dispute rose by individual workmen cannot become an ‘industrial dispute’ unless it is supported either by his union or in the absence of union by a substantial number of workmen.

A union may validly raise a dispute though it may be minority union of the workmen in an establishment.

If there was no union of workmen in an establishment, a group of employees can raise the dispute which becomes an industrial dispute even though it is a dispute relating to individual workman;

Where the workmen of an establishment have no union of their own and some or all of them

have joined a union of another establishment belonging to same industry, if such an union takes up the cause of the workmen working in the establishment, the dispute could become an ‘industrial dispute’ if such union can claim a representative character in a way that its support would make the dispute an industrial dispute.

Hence, it becomes clear that the sponsoring of an individual dispute by any union is not enough to convert it into an ‘industrial dispute’. It would always be necessary to enquire whether the union which has sponsored the dispute can fairly claim a representative character in such a way that its support to cause would make the dispute an industrial one.

Employment or Non Employment: What Scenario Causes Industrial Dispute

The factor which plays a crucial role in deciding what makes a dispute an ‘industrial’ one; it’s the employment factor inside the definition under S.2 (k). The dispute must relate to either the employment or non-employment or terms of employment or conditions of labour of any person. If these conditions are not made, it will not satisfy the requirements of law and will not fall within the ambit of ‘industrial dispute’ [22]

The words “employment or non-employment” are of inclusive amplitude and have been put in juxtaposition to make the definition of ‘industrial dispute’ thoroughly comprehensive. In Western India Automobile Association vs. Industrial Tribunal [23] , the federal court discussed the import of these words and paraphrased the definition of ‘industrial dispute’ as “Any dispute which has connection with the workmen being in, or out of service or employment”.

The words ‘employment or “non-employment” has not been defined in the act [24] . But “employment refers to a condition in which a man is kept occupied in executing any work and it means not only an appointment to any office for the first time but also the continuity of appointment [25] . A dispute relating to non-employment of the workman raised by a union of which he was a member and relating to this employment by other union is an industrial dispute.

Whereas, the term ‘non-employment’ shows negative of ‘employment’ and would mean that the disputes of workmen out of service with their employers are within the ambit if the definition. It is the positive or the negative act of an employer that leads to employment or to non-employment or it may relate to an existing fact of non-employment. [26] Therefore, the failure to employ are actions on the part of the employer which would be covered by the terms “employment or non-employment” and subsequently an Industrial Tribunal will have jurisdiction to adjudicate on an ‘industrial dispute’ arising out of the ‘refusal’ of an employer to employ a workman. However, the question on ‘non employment’ will arise only when the employer refuses to give work to a person who is entitles to work. [27]

Employment or non-employment constitutes the subject matter of one class of industrial disputes; the other two are terms of employment and conditions of labour. Which brings us to the more complex issue of ‘any person’ in industrial dispute?

The Meaning of ‘Any Person’ in Industrial Dispute

An ‘Industrial dispute’ means inter alia, any dispute between employers and workmen and the expression workmen means ‘any person’ employed in any industry to do skilled or unskilled work of the type described by section 2(s) [28] . But that brings us to the question of ‘any person’. The expression ‘any person’ occurring in the definition can’t be given its ordinary meaning and must be read in the context of the act and object of the legislature, which they had in view. In Section 2(k), the word ‘person’ has not been limited to ‘workmen’ as such and therefore must receive a more general meaning; but it does not include any person unconnected with the disputants in relation to whom the dispute is not of the kind described.

As it was mentioned in Workmen of Dimakuchi Tea Estate vs.Dimakuchi Tea Estate [29] , that the word ‘any person’ if given an ordinary meaning, then the section 2(k) will only become so wide as to become inconsistent not merely with the objects and other provisions of the act, but also with the other parts of that very clause and hence workmen may raise a dispute about a person with whom they have no possible community of interest, they may raise a dispute about employment of person in another industry or a different establishment.

The Court in Workmen of Dimakuchi Tea Estate vs. Dimakuchi Tea Estate [30] , acknowledging the fright of misinterpretation of the word ‘any person’ held that, Where the workmen raises a dispute as against their employer, person or persons regarding whose employment or non-employment the dispute is raised, the person who raised it need not be strictly speaking a ‘workmen’ within the meaning of the Act but must be a person in whose employment or non-employment the workmen as a class have direct and substantial interest, and such interest must be real and positive and not fanciful or remote, and whether such direct or substantial interest has been established in a particular case will depend on facts and circumstances of each case.

Epilogue

In the Conclusion, the occupation of the researcher is to determine what constitutes an Industrial Dispute; how one particular dispute takes the shape of an Industrial Character, is the issue at hand and not the solution. The Industrial Disputes Act was made for the settlement of disputes between workers and management of industrial establishments. It was the outcome of very renowned fact of Industrial relation system, which was considered essential of economic and social prosperity of a nation. But the reality is that institution of free collective bargaining remained incompatible with economic planning of India. The unions affairs were closely regulated, controls were imposed on strikes; collective bargaining was abandoned for future. The institutions of the state viz. executive, legislature, judiciary, and labour administration determined the substantive and procedural rules of the system which are usually made by the bipartite processes elsewhere. This institutional framework remained unchanged despite the dismal record of the state interventionist strategy and the appointment of several Commissions. But, the best part of democracy lies in its ability to evolve, which may be slow but it ultimately takes place. The change which I am referring, are the Second National Labour Commission and the Industrial Disputes Amendment Bill 2009, under the Second National Labour Commission, a three-tier system of LokAdalats, Labour Courts and the Labour Relation Commission was formed. While the LokAdalats and Labour Courts were created to deal with individual grievances and complaints.The Commission also recommended that Labour Courts should have final authority in issues pertaining to labour and jurisdiction of civil courts in this area be banned. By imposing on the unions the condition of 10 per cent membership to represent labour in various fora, the Commission tried to eliminate the role of very small unions parading as genuine representatives of labour. How far these changes have ameliorated the workers condition is not an issue at hand, what I am trying to suggest is that somehow there lies some teething troubles which is why much reliance is placed upon the Amendment Bill of 2009, which act as a enhancer of Industrial Relation system, allows workers to approach the court or tribunal directly, when his services are terminated and save himself of all the red tape involved. The Amendment Bill requires all establishments with more than 20 workmen to establish a grievance redressal committee to hear individual grievances. That same grievance system, owes its origin from Second Labour Commission. Individual grievance redressal system will help Individual workmen who on their own are unable to lodge a protest against the establishment. Hence, trade union’s espousal of disputes can be limited up to a certain extent. This and many more guidelines are being laid down in the Amendment Bill of 2009, how far they will able to help the needy, only time will tell.