Scope of 'Any Person' in definition of Industrial Dispute (Extent) 2(k)

Ques - Dr. Raja Babu was appointed as a Chief Medical Officer, in the
Municipal Corporation of the State Government. His terms of
employment plainly stated that his appointment was subject to a
clearance report to be submitted by the 'Supervisor. It also stated
that he was on probation for four (4) months and his permanent
appointment was to be considered during that period. Charged with
allegations of sexual harassment at workplace, he was removed
from work without due notice of one (1) month as mentioned in his
contract. Pleading innocence, he approached the trade union of the
department to intervene. The union espoused his cause and
demanded his reinstatement which was opposed by the corporation
on the ground that the union cannot raise his dispute. Discuss and
decide whether the contention of the Municipal Corporation is
maintainable or not with specific reference to the definition of
industrial dispute, section 2(k) under Industrial Disputes Act, 1947.

Ans. The issue under consideration in the present question requires

discussion on the provision "industrial dispute" as contained under section
2(k) of the Industrial Disputes Act, 1947.

According to Section 2(k) of the Industrial Disputes Act, 1947 "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 person.

Essential components of Industrial Dispute

1. Factum of real and substantial dispute: There must be a real dispute.

It should not be vague. The mere apprehension of dispute is not sufficient.
For a dispute to be industrial dispute it is necessary that a demand must be
first raised on management and rejected by it. The term 'industrial dispute'
connotes a real and substantial difference having some element of
persistency and continuity till resolved. Written demand is not necessary for
bringing into existence an "industrial dispute'.

2. Parties to the dispute: The dispute must be between (a) employers and
employers, (b) employers and workmen, or (c) workmen and workmen.

3. Subject-matter of the dispute: The dispute must relate to the matters

provided in the definition. It must be connected with the employment or non-
employment or the terms of the employment or with the conditions of
labour, of any person. All disputes relating to the matters specified in the
second schedule and in the third schedule constitute 'industrial dispute'.

In Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea

Estate, the issue was whether the dispute in relation to a person who is not
a workman falls within the scope of an industrial dispute under Section 2(k)
of the Act.

In this case, one Dr. Banerjee was appointed by the respondents as their
Assistant Medical Officer, on three months' probation. After three months his
services were terminated, with one month's salary in lieu of notice, on the
ground of incompetency. On the espousal of his cause by the Assam
Karamchari Sangh, the Government of Assam referred to a tribunal the
dispute about his reinstatement.

The Supreme Court, however, observed that the expression 'any person'
cannot mean anybody and everybody in this wide world. Any person',
therefore, cannot mean a person with respect to whom the employer is in no
position to give any relief.

The other crucial limitation is that the workmen can raise a dispute in
respect of those persons only of whom they have direct or substantial
interest. i.e. a community of interest. Community of interest cannot exist
unless the person is a past or present workman. In the absence of such
interest the dispute cannot be said to be a real dispute between the parties.

The court held that Dr Banerjee was not a 'workman'. He belonged to the
medical or technical staff - a different category altogether from workmen.
The appellants had no direct, nor substantial interest in his employment or
non-employment, and even assuming that he was a member of the same
Trade Union, it cannot be said that the dispute regarding his termination of
service was an industrial dispute within the meaning of Sec. 2(k) of the Act.

It may, however, be noted that today the decision on facts would be

different due to the existence of the word 'technical' in the
definition of 'workman'. Today a doctor is a workman. However, the
ratio of this case still holds good.

Ques - The language of section 2(k) is wide enough to cover a

dispute between an employer and a single workman provided such
disputes must involve the right of the workmen as a class and not a
dispute touching the individual rights of a workman. Discuss the
Conditions when does Individual Dispute becomes an Industrial
Dispute with the help of the cases.

Ques (a) Explain the difference between 'individual dispute and

industrial dispute'. What are the circumstances under which an
individual dispute may become an industrial dispute.

(b) Examine whether the following would amount to industrial

dispute under the Industrial Disputes Act, 1947. Substantiate your
answer.

(i) The workmen of a private company demand the management

that due to wide disparity in the income between the workmen and
the management cadre the salary of the management staff be
reduced by Rs. 10,000 from the existing salary.

(ii) A workman in a public utility service demands the management

to promote him to next grade, which the management turned down.

Ans. Individual Dispute v Industrial Dispute

A dispute between employer and a single workman is an 'individual dispute.

Sec. 2(k) of the Act speaks of a dispute between employer and workmen ie.
plural form has been used. Before insertion of Sec. 2A of the Act an individual
dispute could not per se be an industrial dispute, but it could become one if
taken up by the Trade Union or a number of workmen.

The only condition for an individual dispute turning into an industrial dispute
is the necessity of community of interest which must exist at the date of
reference; the concerned workman need not be a member of the Union.

The number of workmen must however be such as to lead to an inference

that the dispute is one which affects the workmen as a class.

Sec. 2A

After this an individual dispute even though not sponsored by other workmen
or espoused by the union would be deemed to be an industrial dispute if it
covers any of the matters mentioned in Sec. 2A.

Sec. 2A is of limited application. It does not declare all individual disputes to

be industrial disputes, but covers only cases of discharge, dismissal,
retrenchment or other termination of service. If the dispute is connected with
other matters (e.g. conditions of labour) then it would have to satisfy the test
laid down in judicial decisions.
Effect of 2010 Amendments (2A)

Prior to the 2010 amendments, non-termination issues (like

promotion/transfer/ punishments not amounting to termination) individual
workman couldn't raise a dispute if there are no other workmen supporting
his case. But after the 2010 amendment, any person who is a workman
employed in an industry can raise an industrial dispute (via use of ADR
procedures like Conciliation).

LEADING CASE: J.H. JADHAV v FORBES GOKAK LTD

The appellant was employed by the respondent. He claimed promotion as a

clerk. When this was not granted, the appellant raised an industrial dispute.
It was contended by the respondent that the individual dispute raised by the
appellant was not an industrial dispute within the meaning of Sec. 2(k) of the
Industrial Disputes Act, 1947, as the workman was neither supported by a
substantial number of workmen nor by a majority union. In the present case,
the appellant was a member of a different union, namely, Gokak Mills Staff
Union.

Issue- Whether Gokak Mills Staff Union (which is an outsider union) can be
considered as a majority union and espoused the aggrieved workman.

Court held that there is not particular form prescribed to effect espousal of
cause of single workmen by the union.

A dispute relating to a single workman may be an industrial dispute, it must

either be espoused by the Union of workman or a number of workmen.

Further, the dispute must be connected with the employment or non-

employment of workmen.

An outside union i.e. a union of another establishment can sufficiently

represent the cause of a workman. It would be open to such union to take up
cause of workmen if it is sufficiently representative of those workmen.

Ans. 7(b) (i) Dispute raised by workmen demanding abolition of contract

labour in a concern is an industrial dispute. Whenever a dispute is raised by
workmen in regard to the employment of contract labour by any employer it
would be necessary for the Tribunal to examine the merits of the dispute
apart from the general consideration that contract labour should not be
encouraged, and that in a given case the decision should rest and merely on
theoretical or abstract objections to contract labour but also on the terms
and conditions of which contract labour is employed and the grievance made
by the employees in respect thereof. [Standard Refining Company of India
Ltd. v. Their Workmen, (1960) SC 948].

(ii) Dispute regarding confirmation of workmen officiating in higher grade

involves 'classification by grades' specified in Entry 7 of Third Schedule and
is an 'industrial dispute' which Tribunal Constituted under section 7A is bound
to adjudicate [Workmen v. Hindustan Lever Limited, (1984) 4 SCC 392].

MUNICIPAL CORPN. OF DELHI FEMALE WORKERS (MUSTER ROLL)

In this case, the female workers (muster roll), engaged by M.C.D. raised a
demand for grant of maternity leave which was made available only to
'regular' female workers. Their case was espoused by the Delhi Municipal
Workers' Union which contended that such female workers are made to work
in the capacity for years together though they are recruited against the work
of perennial nature.

It was, however, contended on behalf of the Corporation that such workers,

engaged on muster roll, are engaged only on day wages. Thus, they are not
entitled to benefits under the Maternity Benefit Act, 1961, and, the Central
Civil Services (Leave) Rules. It was also contended that they were set entitled
to any benefit under the Employees' State Insurance Act, 1948.

The Industrial Tribunal issued a direction to the management of the Municipal

Corporation of Delhi to extend the benefits of the Maternity Benefit Act to
such muster-roll female employees who were in continuous service of the
management for three years or more and who fulfilled the conditions set out
in Sec. 5 of that Act.

The workmen or, for that matter, those employed on muster roll for carrying
on M.C.D. activities would, therefore, be "workmen" and the dispute between
them and the Corporation would have to be tackled as an "industrial dispute"
in the light of various statutory provisions of the industrial law, one of which
is the Maternity Benefit Act, 1961.