Labour and Industrial Laws – I (2017-18)

Topic: Individual Dispute vs. Industrial

Dispute. An Analysis.

Submitted by: Submitted to:

Pavitra Shivhare Prof. R. K. Murali
B.A. LL.B (Hons.) 7th Sem
Roll No. 14137LA044
 Acknowledgements
First and foremost, I would like to express my gratitude
towards Prof. R. K. Murali, who gave us freedom to select
three topics from anywhere in the syllabus, and then selected
one of the three himself for the assignment. This allowed me
to choose topics in which I was personally interested in and
wanted to learn more about.
I wish to thank my friends, who were of much help
throughout the process of finishing this assignment.
At last, I acknowledge all the writers, authors and researchers
who sow for us to reap, for without them this assignment
never would have come near completion.

Pavitra Shivhare
B.A.LL.B. (Hons.) Semester VII
Roll No. 44

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 CONTENTS
Introduction 4
Industrial Dispute (Section 2(k)) 6
Legislative Responses: Insertion of Sec. 2A 10
Individual Dispute vs. Industrial Dispute (Table) 12
Section 2 (k) compared with Section 2A 13
Conclusion 14
Bibliography 15

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 INTRODUCTION
A controversy or dispute is a matter of opinion over which parties actively
disagree, argue, or debate. Controversies can range in size from private disputes
between two individuals to large-scale disagreements between societies.
Industrial Dispute is “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.”
For settling of the industrial disputes, a number of industrial disputes
legislations were created which can be traced back to 1860, yet it was not till
after the First World War that any significant movement was registered in that
direction.
In 1859, the violent conflict between the European Railways and their
employees in Bombay Presidency led to the Employers and Workmen’s Dispute
Act in 1860. This provided for speedy and summery disposal of disputes by
magistrates. By 1870s the Act was extended to many provinces, but was
repealed in 1932. The appointment of Royal Commission also led to several
recommendations for legislation incluing the Trade Disputes Act of 1929. This
was refurbished and expanded to become the Industrial Disputes Act, 1947.
The main objective of the Act was-
A. To make provisions for the investigation and settlement of industrial
disputes.
B. To promote measures for securing and preserving amity and good relations
between employer and employees.

C. To prevent illegal strikes and lock-outs.

D. To provide relief to workmen during lay-off or after retrenchment, wrongful
dismissal or victimization
E. To provide conciliation, arbitration and adjudication facilities.

Industrial disputes tend to reduce economic profits and inflict damages on both
employer and employee side. Disputes pose problems for rationalizing labour
and capital. Moreover, the industry looses man-day per employee for the
disputes. It also creates problem in the production and financial profit of the
industry. This ultimately affects the economy of the country. Today most of the
countries especially, India, are dependent upon foreign investment and under
these circumstances it is necessary to keep some safeguards in the industrial
laws as well as labour laws.

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Therefore, maintaining industrial peace and harmony is important for a worker
as it is for an employer as it postulates the existence of understanding co-
operation and a sense of partnership between the employers and employees.

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 Industrial dispute (Section 2(k))
The important objective of the Industrial Disputes Act, 1947 as pointed out in
the preamble is “to make provision for the investigation and settlement of
industrial disputes”. Therefore the definition of “industrial dispute” has got
special significance.
The following are the important elements to constitute an industrial dispute
1. A dispute or difference between employers and employers, or employers and
workmen, or workmen and workmen.
2. The dispute or difference should be connected with
(a) employment or non – employment, or
(b) terms of employment, or
(c) conditions of labour of any person.
3. The dispute may be in relation to any workmen or workmen or any other
person in whom they are interested as a body.
The expression “of any person” appearing in the last line of section 2(k) means
that he may not be a workman but he may be someone in whose employment,
terms of employment or conditions of labour the workman as a class have a true
and substantial interest.
Industrial dispute is not restricted to dispute between employer and recognized
majority union it also means difference between employer and workmen
including a minority union.
The terms ‘employment’ and ‘non–employment’ include retrenchment as well
as refusal to reinstate. The use of the word “non – employment raised a question
whether an employee who had been dismissed, removed, discharged, retrenched
can be reinstated by an order of a Industrial Tribunal.
Dispute relating to workmen employed by the contractor.
In some cases, the workman may not be the direct employee of an organization
but a workman employed to perform certain works or duties under a contractor.
In this regard certain cases are mentioned. A few of them are given below.
The leading case on this point is the Standard Vacuum Refinery Company of
India Vs Their workmen and another.
In this case the workmen under he contractor as said by the employers,
contractor’s men were not entitled to any privilege and there was no security of
employment by which the workmen disputed raising an industrial dispute
demanding the abolition of contract system.
The SupremeCourt held in this case that the dispute to be an industrial dispute
becausethere was a real and substantial disputes between the workmen and the
company on the question of contract labour for the work of the company.

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Individual Dispute when becomes industrial dispute:
Is a dispute between individual workman and his employer an industrial dispute
u/s 2(k) Act?
This is a question of great controversy in Central Provinces Transport Service
v. Raghunath Gopal Patwardhan the court gave two views as to the meaning
of the expression’ A Industrial Dispute’. They are
1. A dispute between an employer and a single workman cannot be an industrial
dispute.
2. It cannot per se be an industrial dispute but may become one if taken up by a
number of workmen or trade union.
The Supreme Court of India examined this concept in different cases and
observed in the case of News Papers Limited Vs State Industrial U.P.and
others.
Tajammal Hussain, a lino typist was dismissed by the Newspapers on the
ground of incompetence. His case was neither taken up by the Union of workers
of the establishment or by any union of similar trade. His case was taken up by
U.P Journalists Union with which the employee had no concern. The
government referred the dispute to the Industrial Tribunal for adjudication. The
Tribunal ordered reinstatement. The appellate Tribunal and High Court affirmed
it. Appeal went to SC who held that Tajammal Hussain could not be termed as
workmen and U.P Journalists Union is not his Union nor there any indication
that the individual dispute has been transferred to industrial dispute.

Whether a single man who is aggrieved by an action can raise industrial

dispute.
The Section 2(k) of the Industrial Disputes Act, 1947 provides that a dispute
between employer and workmen i.e. plural form has been used, the Supreme
Court of India specifically observed that “before insertion of section 2(A) of
the Act an individual dispute could not per say be an industrial dispute, but it
could become one if taken up by the trade union or a number of workmen.
The provision of the Act leads to the conclusion that its applicability to an
individual as oppose to dispute involving a group of workmen is excluded
unless it acquires the general characteristic of an industrial dispute viz., the
workmen as a body or a considerable section of them make common cause
within the individual workmen”.

In Bombay Union of Journalists v. The Hindu the scope of industrial dispute

was further curtailed. In this case the dispute of a workman was taken up the
Bombay Union of Journalists of which union the workman was a member. The
Bombay Union of Journalists was a union not to employee of one employment
but of all employees in the industry of journalism in Bombay. None of the
employees of The Hindu were its members. SC held that it is an individual
dispute and not an industrial dispute.

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In Workmen of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea
Estate SC gave two tests to determine whether a dispute is industrial or
individual. They are-
There must be a real dispute capable of being settled by relief given by one
party to other.
The person in respect of whom the dispute is raised must be one in whose
employment, non- employment, terms of employment or conditions of labour,
the parties to the dispute have a direct or substantial interest and this must
depend on facts and circumstances of each particular case.

SC held that an individual dispute may be converted into an industrial dispute

when-
(1) it is espoused by trade union or
(2) it is espoused by an appreciable number of workmen.
So as per the first condition to make an individual dispute into an industrial
dispute it must be taken up by a union of workers of the establishment and
where there is no such union it may be espoused by any of the union of
workmen employed in similar trades.
As far as the second condition is concerned if an individual dispute of a
workman is espoused by an appreciable number of workmen of the same
establishment, then it is converted into an industrial dispute.

The court has admitted that the expression “appreciable number" does not
mean majority of the workmen.
In Workmen of Dharampal Premchand v. M/S Dharampal Premchand
Out of 45 workmen, 18 were dismissed. There was no union of workmen. The
court said that this dispute is espoused by an appreciable number of workmen
and therefore can be called as an industrial dispute. Thus SC relaxed the
requirement of considering an individual dispute as an industrial dispute and
thereby overruled Bombay Union of Journalists case.

The net effect of the aforesaid decisions is that an individual worker

unsupported by an appreciable number of workmen or union has no remedy
under the Industrial Disputes Act, 1947.
The following are some of the principles laid to examine the nature of the
dispute by the above said Courts.
1. The dispute must affect large group of workmen or employers who have
community of interest and the rights of these workmen must be affected as a
class in the interest of common good. In other words, considerable section of
employees should necessarily make common cause with the general lot.
2. The dispute should invariably be taken up by the industry union or by an
appreciable number of workmen.

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3. There must be a concentrated demand by the workers for redress and the
grievance becomes such that if turns from individual complaint into the general
complaint.
4. The parties to the dispute must have direct and substantial interest in the
dispute, i.e., there must be some nexus between the union which espouses the
cause of the workmen and the dispute. Moreover, the union must fairly claim a
representative character.
5. If the dispute was in its inception an individual dispute and continued to be
such till the date of its reference by the Government for adjudication, it could
not be converted into an industrial dispute by support to the reference even of
workmen interested in the dispute.

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 Legislative Responses: Insertion of
Section 2A
Before the introduction of S. 2A, as a result of judicial interpretation an
individual workmen who has been discharged, suspended etc from the work had
no remedy under the Industrial Dispute Act 1947 unless his case was sponsored
by his fellow workmen or trade union.
His only remedy was to approach the civil court. This new section was inserted
by the Amendment Act 1965.
S.2A provides that dispute or difference between an individual workman and his
employer connected with discharge, dismissal, retrenchment or otherwise
termination of service of a workman shall deemed to be an industrial dispute
even though it has not been sponsored by his fellow workmen or trade union.
But the scope of S.2A is limited. It does not apply in case of dispute arising from
transfer or promotion or refusal or failure to promote the employee or any
punishment imposed on such employee or dispute or difference as to money due
to such employee from the employer or as to any amount at which a benefit
which is capable of being computed in terms of money is to be computed.

In Chemicals and Fibers of India Limited v. D.S.Bhoir , SC said that what

will not be an industrial dispute u/s 2(k) is deemed to be an industrial dispute
u/s 2A. The constitutional validity of the section was challenged. Delhi, Punjab,
Haryana, Madras and Mysore High Court upheld the constitutional validity of
the section whereas the Calcutta High court said that it is ultra vires to the
constitutional provisions. SC also upheld the constitutional validity of the
provision. A question arose whether the Parliament has legislative competency
to make law on individual dispute. It was stated that the Parliament has
legislative competency under Entry 97 of List I.

In P. Janardhana Shetty v. Union of India, it was contended that S.2A should

be struck down as it is violative of Art.14 of the Constitution as it discriminates
between individual workmen who has been discharged, dismissed or retrenched
and an individual workman who had any other grievances.
In this respect the court said that it is open to the legislature to recognize
different degrees of harm and to provide for different remedies in respect of
them. The legislature may provide a remedy for harm or an evil of bigger
magnitude and may not provide for a remedy for a harm or an evil of smaller
magnitude. By doing so it does not violate Art.14 and therefore, the section is
not violating Art.14.
Even assuming that the scope of S.2A is adequate, the Act does not confer any
right on individual workman to raise dispute connected with discharge,

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dismissal, retrenchment or otherwise termination of service. The Act confers
such right on appropriate government alone and in the exercise of this discretion
the appropriate government may or may not refer such a dispute for
adjudication.

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 Individual Dispute vs. Industrial
Dispute (Table)
No Individual Dispute
1) Whether a single workman who is
aggrieved by an action of the employer
and raise Industrial Dispute. Section 2(k)
of the Industrial Act, 1947 speaks of a
dispute between employer and workmen
i.e. Plural form is used.
Before insertion of the Section 2A of the
Act, an Individual Dispute could not per
se be an Industrial Dispute but it
becomes one if taken up by the Trade
union or a number of workmen to the
dispute.
2) An Individual Dispute to be declared as
an Industrial Disputes, The following
Conditions are to be satisfied –
(1) A body of workmen ( Trade Union)or a
considerable number of workmen are
found to have common cause with the
Individual workman;
(2) That the Individual dispute was taken
up or sponsored by the workmen as a
body ( trade union) or by Considerable
Section of them before the date of
reference.
Industrial Dispute
Industrial Dispute is defined under Section 2(k)
of the Industrial Dispute Act, 1847. “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 persons.”
To constitute Industrial Dispute following
elements are to be satisfied -
1) A dispute Between Employers and
employers or employer and workman or
workman and workman.
(2) The Dispute should be connected with
employment or non-employment or terms of
employment or conditions of labour of any
person.
(3) The Dispute may be in relation to any
workmen or any other person in whom they
are interested as a body
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Section 2 (k) compared with Section 2A
An individual dispute even though not sponsored by other workmen or
espoused by the union would by deemed to be an industrial dispute if it covers
any of the matters mentioned in Section 2-A. So far as the subject matter of the
dispute is concerned 2-A does not bring about any change. The provisions of
Section 2(k) alone determine that question.

The only change introduced by Section 2-A is that before its introduction, a
dispute even though was an industrial dispute from the perspective of subjects
referred to in Section 2 (k) would not have become an industrial dispute if it
were only an individual dispute and it was not taken up either by the union or by
a substantial body or workmen. But after the introduction of Section 2-A such a
dispute would be an industrial dispute in respect of those matters specified in
that Section even though it is not sponsored by a union or a considerable
number of workmen. Section 2-A can be treated as an explanation to Section 2
(k).

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 Conclusion
In 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.

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 BIBLIOGRAPHY
In making of this project following books have been used:
1. Srivastva. C .Suresh, Industrial Relations and Labour Law, 6th Edition
2013, Vikash Publications.
2. 2.Mishra.S.N., Labour and Industrial Law, 28th Edition, 2016, Central law
Publication.
3. Goswami. V.G., Labour and Industrial Law,16TH Edition, 2015, Central
law agency.

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