Sajeev A. S/o Anandan v. P.A. Sakharia, Shines Bar and Restaurant; A. Vijayan; G. Jayaprakash

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 WP(C).No. 20563 of 2008(W) -------------------------- SAJEEV A.S/O.ANANDAN, VELIYIL VEEDU, 1. P.A.SAKHARIA, LICENSEE, SHINES BAR AND RESTAURANT, NEAR IRON BRIDGE, KOLLAM. 2. A.VIJAYAN, MANAGER, SHINES BAR HOTEL 3. G.JAYAPRAKASH, GENERAL SECRETARY, QUILON HOTEL & TEA SHOP WORKERS UNION, INTUC, THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P.(C).No.20563 of 2008 ================== Dated this the 9[th] day of July, 2008 J U D G M E N T The petitioner is an individual workman of respondents 1 and 2 managements in I.D. No.49/2005 before the Industrial Tribunal, Kollam, wherein two issues, one relating to charter of demands of the workers and another relating to denial of employment to one workman named Sri.Suresh, were pending adjudication, and the Union representing the workmen was prosecuting the dispute. On the ground that the petitioner has lost his faith in the Union representing the workers in the industrial dispute, the petitioner filed an application for impleading himself as a party to the industrial dispute, which was dismissed as per Ext.P2 order. The petitioner is challenging Ext.P2 order in tis writ petition. 2. The contention of the petitioner is that in _**Ram Prasad v. Industrial Tribunal**_ [AIR 1961 SC 857], the Supreme Court has held that in exceptional circumstances an individual workman can be allowed to be impleaded as a party in an industrial dispute. The petitioner also relies on the decision of the Karnataka High Court in _**Workmen v. P.M.M.Moodaliar and Sons**_ [1975 Lab.I.C 1135] in support of his contention. The 2 w.p.c.20563/08 petitioner contends that the Union is not properly presenting the case of the workmen before the Industrial Tribunal and is actually siding with the management. According to the petitioner, the workman involved in the second issue, Sri.G.Suresh, had sent a registered letter to the Tribunal stating that he does not wish to prosecute the dispute since he has lost faith in the Union and has accepted the compensation offered by the management leaving only the other issue to be adjudicated by the Tribunal. The petitioner would contend that these are very special circumstances warranting impleading of the petitioner as a party to the industrial dispute since the issue now remaining for consideration affects the petitioner workman also and he has lost faith in the Union for valid reasons as proved by the letter from the other workman, Sri.G.Suresh. He further points out that in I.D.No.14/2006 between the same parties the petitioner himself was allowed to be impleaded, by the same Tribunal as evidenced by Ext.P3 order. 3. From the impugned order I find that the contention of the Union was that the Union was conducting the case properly w.p.c.20563/08 3 and it is the petitioner who actually wants to side with the management. The contention was that the attempt of the petitioner, by filing an impleading petition by engaging an advocate, was to enable the management to appear through a counsel which opportunity was earlier denied to the management on the objection of the Union. 4. I have considered the contentions of the counsel for the petitioner. 5. It is not disputed before me that apart from the petitioner and the other workman viz. G.Suresh, there are many other workers in the management establishment whose cause is also espoused by the very same Union. The petitioner has no case that the other workers or the majority of the workers having lost faith in the Union or its office bearers nor was there even an attempt to remove the office bearer of the Union who is conducting the case on behalf of the Union. It is not the case of the petitioner that the majority of the workers have a case that they have come forward with a case that they have lost faith in the Union or the office bearers since the Union is not presenting w.p.c.20563/08 4 their case properly before the Tribunal. It is only the case of the petitioner and the other workman Shri.Suresh who himself did not want to himself contest the matter on merits, but decided to accept the compensation offered by the management and sent a letter to the Tribunal stating that he does not want to prosecute the dispute any further. The petitioner does not dispute the fact that the management wanted themselves to be represented by a lawyer in the industrial dispute before the Tribunal, which was objected to by the Union as a result of which, representation by counsel was denied to the management. The petitioner has filed the impleading petition through a lawyer. Therefore, there is legal representation for the petitioner. If the petitioner is impleaded as a party to the industrial dispute, then naturally the Tribunal would be forced to permit the management also to be represented by a lawyer, which was being objected to by the Union. In fact before the Tribunal the specific contention of the Union was that it is to enable the management to be represented by a lawyer in the industrial dispute, the petitioner has come forward with this impleading petition. In view of the admitted 5 w.p.c.20563/08 fact that the representation by counsel was denied to the management on the objection of the Union, and if the petitioner is impleaded, the Tribunal would be forced to permit the management to be represented by lawyer despite the objections of the Union, the allegation raised by the Union appears to be more probable than that of the petitioner. The scheme of the Industrial Dispute Act is to the effect that unless the dispute comes within the purview of Section 2A of the Industrial Disputes Act, industrial dispute has to be raised and prosecuted by a Union only and not by an individual workman. In this case no particular issue relating to the petitioner exclusively is referred to the Tribunal. On the other hand, the justifiability of a general charter of demands submitted by the Union on behalf of all the workers is being adjudicated by the Tribunal. Other workers have no complaint that the Union is not prosecuting the industrial dispute properly. Therefore, despite the decisions referred to above relied on by the petitioner, I am not satisfied that this is a extraordinarily special case warranting impleading of an individual workman in the industrial dispute. In fact in _**Ram**_ 6 w.p.c.20563/08 _**Prasad's case**_ (supra) the issue referred for adjudication was the dismissal of the workman who sought himself to be impleaded in the industrial dispute itself. While holding that the ordinary rule should be that representation by an officer of the trade union should continue throughout the proceedings in the absence of exceptional circumstances which may justify the Tribunal to permit other representation of the workman concerned, the Supreme Court refused to allow the workman to be represented by persons of his choice, even after finding that the dismissal of the workman which was the issue involved in the industrial dispute, was on the complaint of the Secretary of the Union who was prosecuting the dispute. In _**Madurai Moodaliar's case**_ (supra), the issue involved was whether in an industrial dispute where the Union was party to the dispute, the concerned workman can enter into a settlement with the management and the decision was that the personal right of the concerned workman to enter into a settlement is not taken away merely because he is represented by the Union in the industrial dispute. That decision has no application to the facts of this case. In w.p.c.20563/08 7 Ext.P3 order, the issue referred for adjudication was the dismissal of the workman who wanted to be impleaded (who is the petitioner in this case himself) and therefore, the same yardstick cannot be applied here wherein no issue exclusively relating to the petitioner is pending adjudication. Therefore, I do not find any merit in the challenge against Ext.P2 order and accordingly, the same is dismissed. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge