KSRTC Workers Federation v. Secretary, Department of Labour and Rehabilitation, Government of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** ## **WP(C).No.921 OF 2020(M)** ## **PETITIONERS:** - **1 KSRTC WORKERS FEDERATION REG.NO.283/71, NANTHANCODE, THIRUVANANTHAPURAM DISTRICT-695 003, REPRESENTED BY ITS PRESIDENT, S.SEETHILAL, AGED 56 YEARS, S/O.SUKUMARAN, RESIDING AT KANDATHIL HOUSE, KAROOR, AMBALAPUZHA P.O., ALAPPUZHA DISTRICT-688 561.** - **2 GENERAL SECRETARY, KSRTC WORKERS FEDERATION, REG.NO.283/71, NANTHANCODE, THIRUVANANTHAPURAM DISTRICT-695 003, G.MADHUSOODANAN PILLAI, AGED 64 YEARS, S/O.GOPALAKURUP, LATHARA HOUSE, PATHIYOOR EAST, KEERIKADU P.O., ALAPPUZHA DISTRICT-690 508.** **BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB SHRI.VINAY M.E.** ## **RESPONDENT/S:** - **1 SECRETARY, DEPARTMENT OF LABOUR AND REHABILITATION, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 KERALA STATE ROAD TRANSPORT CPRPORATION, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM-695 023.** - **3 THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, T RANSPORT BAHVAN, EAST FORT, THIRUVANANTHAPURAM-695 023.** ## **SRI T.P SAJAN SC, SMT POOJA SURENDRAN GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.921 OF 2020(M)** **2** ## **JUDGMENT** The petitioners herein are the KSRTC Workers Federation, a registered trade union as well as its General Secretary. They approached the Industrial Tribunal, Alappuzha and filed an application under Section 2A(2) of the Industrial Disputes Act, 1947, espousing the cause of 2608 members of the 1[st] petitioner Union and sought for the following relief. 'To direct the 1[st] respondent Corporation to regularise the service of the 1[st] petitioner union members who were employed as empanelled Conductors, Drivers, Mechanical Workers and Ministerial Staff, of the 1[st] respondent Corporation or in the alternative to direct the 1[st] respondent Corporation to give the members of the 1[st] petitioner union all their eligible and entitled statutory benefits in accordance with law for the period they had worked in the 1[st] respondent Corporation.' 2. The Industrial Tribunal heard the petitioners on the question of maintainability as a preliminary issue. By Ext.P3 order, the Tribunal came to the conclusion that Section 2A of the Act covers only cases of discharge, dismissal, retrenchment or termination of an individual workman and no other matters. As the prayer was for regularisation and since the Union was espousing the cause of 2608 workers, it was held that the application was **WP(C).No.921 OF 2020(M)** **3** not maintainable before the Tribunal. The said order is under challenge. 3. Sri.Liju.V.Stephen, the learned counsel appearing for the petitioners, vehemently submitted that the order passed by the Industrial Tribunal cannot be sustained. According to the learned counsel, the registered Trade Union is entitled to espouse the cause of the workers who are entitled to regularisation. Much reliance is placed on Section 36 of the Industrial Disputes Act to advance his contention. The learned counsel would place reliance on **Algu Ram v. State of Punjab and others[1]** and **Maharashtra General Kamgar Union v. Haldyn Glass Works[2]** to buttress his arguments. 4. I have considered the submissions advanced and have perused the records. Before dealing with the submissions, it would be apposite to refer to Section 2A of the Industrial Disputes Act which reads as follows: ## “Section 2A: “Dismissal etc. of an individual workman to be deemed to be an industrial dispute- (1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial 1 (1977-II-LLJ 207) 2 (2005-II-LLJ 513) **WP(C).No.921 OF 2020(M)** **4** dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. (2) Notwithstanding anything contained in section 10, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government. (3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section(1) ” 5. This provision does away with the requirement of espousal of an individual dispute for converting it into an industrial dispute in cases where the dispute arises out of: - (i) discharge - (ii) dismissal, - (iii) retrenchment, or - (iv) otherwise termination of services of an individual workman. By introducing the legal fiction that the dispute of an individual **WP(C).No.921 OF 2020(M)** **5** workman connected with or arising out of his discharge, dismissal, retrenchment or otherwise termination of his services by his employer will constitute an industrial dispute not withstanding that no other workman nor any union of workmen is a party to the dispute, this provision enlarges the definition of ‘industrial dispute’. In enacting this provision, the intendment of the legislature is that a workman whose service has been terminated unlawfully by the employer, should be given relief without it being necessary for the relationship between the employer and the whole body of employees being involved in that dispute and the dispute becoming generalised one between labour on the one hand and the employer on the other. (see **Chemicals & Fibres India Ltd. v. DG Bhoier[3]** . 6. Trade union tyranny was the reason for introduction of S.2A. In **B.L. Workers Union, Bombay v. B.L. & Co. Ltd.[4]** , it was observed by the Apex Court that if an individual workman was punished by the employer and if he was not a member of the recognised union, the latter was very reluctant to espouse the cause of such stray workman and the individual workman was without a remedy. Cases came to light where the recognised union by devious means compelled the workmen to be its member before it would espouse their causes. The trade union tyranny was taken note of by 3 [(1975) 2 LLJ 168] - 4 [AIR 1985 SC 311] **WP(C).No.921 OF 2020(M)** **6** the Legislature and S.2A was introduced in the Industrial Disputes Act, 1947 by which it was made distinctly clear that the discharge, dismissal, retrenchment or termination of service of the individual workman would be an industrial dispute notwithstanding that no other workman or any union of workmen is a party to the dispute. 7. In **Ram Prasad Viswakarama v. Industrial Tribunal[5]** , it was held by the Apex Court that after the enactment of Section 2A, it is not necessary that a dispute relating to the discharge, dismissal, retrenchment or otherwise termination of service of a workman must be sponsored by a Trade Union or a substantial number of workmen. In other words, even if it is not sponsored by a Trade Union or a substantial number of workmen, such a dispute will be deemed to be an industrial dispute. From the use of the words, ‘notwithstanding that no other workman nor any union of workmen is a party to the dispute’, it appears that the trade union or co workmen are not precluded from sponsoring an individual dispute for the purpose of converting it into an industrial dispute. Thus, such dispute can either ipso facto be deemed to be an industrial dispute on a demand made by the workman himself or by espousal of the dispute by a trade union or a body or workmen. In the former case, the dispute becomes an industrial 5 [1961 (1) LLJ 504] **WP(C).No.921 OF 2020(M)** **7** dispute as soon as the demand is made by the workman that the termination of his service should be recalled and he should be reinstated while in their latter case, it becomes an industrial dispute when the dispute is sponsored by a trade union or a substantial number of workmen and such a demand is made. 8. In the case on hand, a collective dispute is made by the Union representing the cause of 2608 daily wagers and apparently the relief claimed from the Tribunal is regularization of their service. The decisions cited by the petitioners herein are cases in which the Union has espoused the cause of an individual workman and that too for a dispute which resulted in the discharge, dismissal, retrenchment, or otherwise termination of that individual. As held by the Apex Court, there is no embargo in raising such a dispute, provided the cause is of an individual workman. Therefore, the decisions cited by the petitioners have no application in the facts of the instant case. 9. The Industrial Tribunal has rightly held that the provisions of Section 2A cannot be invoked by the petitioners for espousing the collective cause of workers of the Union and categorize the regularization of daily wagers as an industrial dispute and seek adjudication by the Tribunal. I find no jurisdictional error or perversity warranting interference by this Court **WP(C).No.921 OF 2020(M)** **8** under Article 226 of the Constitution of India. Reserving the rights of the petitioners to exhaust their remedies in accordance with law, this Writ Petition is dismissed. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** IAP **//TRUE COPY// P.A.TO JUDGE** **WP(C).No.921 OF 2020(M)** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 16.12.2018 ISSUED BY THE 2ND RESPONDENT DISPENSING THE SERVICE OF THE EMPANELLED CONDUCTORS.** **EXHIBIT P2 A TRUE COPY OF THE NOTICE DATED 01.10.2019 MADE TO THE LABOUR COMMISSIONER.** **EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 09.12.2019 BY THE INDUSTRIAL TRIBUNAL, ALAPPUZHA.** ## **RESPONDENTS' EXHIBITS:** NIL