LexSHAMBU NATH GOYAL versus BANK OF BARODA, JULLUNDUR
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·- - '( r _,,I; •• SHAMBU NATH GOYAL v. BANK OF BARODA, JULLUNDUR February 2, 1978 [V. R. KRISHNA IYER AND D. A. DESAI, JJ.] 793 Industrial Disputes Act 1947-Sec. 2(k)-Sec. 10-Before ll.ll industrial dis- pute is referred whether ll. written donand by the worlanan is csse11tial- Existence of industrial dispute. The appellant was a clerk in the Bank of Baroda. A charge sheet was served upon him. After holding departme~1tal enquiry he \Vlls dismissed from service. An appeal filed by the workman against the dismissal was dismissed. Thereafter, the matter was referred to conciliation. On failure of conciliation, the Government referred the\ dispute to the Industrial Tribunal u•nder section 10 of the Industrial Disputes Act, 1947. The respondent raised a preliminary objection before the Tribunal that as no demand in respect of the at?pellant was made upon the management there was no industrial dispute in existence and, therefore, the' reference made by the Government ut..1der section 10 wa:s in- competent. The Tribunal upheJdr the said preliminary objection on the ground · that as no demand was nlade by the Government either oral or in '.vriting be- fore approaching the conciliation officer there was no dispute in existence on the date of the' reference. Allowing the appeal, HELD : 1. Section 2(k) of the Act defines industrial dispute which re- quires that there should be a dispute connected with Jhe employment or non- employmen.:t or terms of employment inter alia betv.:een the employers .and \vorkmen. The Act nowhere contemplates that the U1spule- 'vould come into existence in any particular specific or prescribed manner. For coming into existence of an industrial dispute a. written demand is not ,\ine qua 11011, [795 B-C] Beetliam v. Trinidaa Cement Ltd., [1960] I All E.R. 244 at 249, referred w. A B c D E 2. The key words in the defiuition of Industrial dispute are dispute or difference. The term industrial dispute connotes a real and substantial diffe- rence having some element of persistency and continuity till resolved and likely ,jf not adjusted to endanger the industrial peace of the undertaking or the com- F munity. To read into definition the requirement of written demand for bring- ing into existence an industrial dispute would tantamOLlnt to rc~writing the sec- ti0n. The power conferred by section 10(1) on the Government to refer the dispute can be. exercised not only where the industrial dispute exists buu \vhcn it is also apprehended. In making a reference under section :O(l) the Government is doing an .administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a prelimina.ry step to the discharge of its function does not make it any the Jess G admii.iistra.tive in character. [795 D-E, F-H, 796 A] Madras State v. C. P. Sarathy, AIR 1953 SC 52 and Si11dhu Resettle1nent Corporation Ltd. v. Industrial Tribunal, [1968] LLJ 834, referred to. 3. The question whether an industrial dispute exists on the date of reference is a queEtion of fact to be determined on the material placed before the Tribunal. [796 DJ 4. In the present case the Tribunal completely misdirected itself V.'hen it H observed that no demand \\'as made by the workinan claiming re-instatement! after dismissal. When the enquiry was held it is an admitted position that the workman appeared and claimed reinstatement. After his dismissal he A B c D E F G H 794 SUPREME COURT REPORTS [1978) 2 S·C·R· ~efe_rred an appeal to the appellate forum and contended that the order of d1sm1ssul was \Vrong and that in any event he should be reinstated in service. When the Union approached the Conciliation Officer, the Management appeared and contested the claim for reinstaternent. There is thus unimpeachable evi~ dence that the concerned \VOrkman persistently demand~d reinstatement. ' [796 E-H. 797 Al CIVIL APPELLATE JURISDICTION: Civil Appeal No. 646 o! 1971. Appeal by Special Leave from the Award dated 25-10-1970 of the Central Industrial Tribunal, Chandigarh in Reference No. 3/C of 1970 published in the Gazette of India, Part II, Section 3, Sub-section (II) dated 28-11-1970. M. K. Garg for the appellant. Ex parte against the respondent. The Judgment of the Court was delivered by DESAI, J. This appeal by special leave arises out of an award made by Industrial Tribunal, Chandigarh in Reference No. 3
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