SAMBHU VAIDYAN Vs. INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) The two petitioners and their father's brother, the fourth respondent, were members of a firm which was doing business, under the name and style "Swarajya Pharmacy." The fourth respondent instituted a suit O. S. 225 of 1956 for the dissolution of the partnership and succeeded in obtaining a preliminary decree on March 27, 1957. The first petitioner moved the Court which passed the decree, on March 1, 1958, for permission to terminate the services of the employees of the firm; this motion was not opposed, the court granted permission and their services were dispensed with on March 6, 1958. On a petition which some of the employees had made, it was ordered on March 7, 1958, that

(2.) In the meanwhile, on December 16, 1958, the second respondent the State of Kerala, referred, by Ext. P. 5, an industrial dispute between the management of the Swarajya Pharmacy, petitioners 1 and 2, and the fourth respondent on the one hand, and the workmen of the aforesaid firm represented by their Labour Union on the other, to the Industrial Tribunal, Ernakulam under S.10(1)(d) of the Industrial Disputes Act, 1947, which may be referred to briefly, as the 'Act.' The annexure to Ext. P. 5 specified the dispute, as "Non-employment of the following workmen" and gave a list of 30 employees. The Industrial Tribunal passed an award, Ext. P.1, which is sought to be quashed by this petition, on various grounds which may now be dealt with.

(3.) It was first contended, that the reference was invalid and incompetent, as the dispute between the parties was not specified in Ext. P. 5, and that the Tribunal was therefore in error in passing an award on such issues, as to compensation on closure of business, and to provident fund. It is sufficient to state, that the contention has to be overruled on the authority of the decision of the Federal Court in The India Paper Pulp Co., Ltd. v. The India Paper Pulp Workers' Union (AIR 1949 FC 148) and of the Supreme Court in The State of Madras v. C. P. Sarathy ( AIR 1953 SC 53 .) The second contention, that no reference for adjudication should be made, unless preceded by conciliation proceedings under the Act, is equally untenable, both on the terms of S.12(1) of the Act, under which a conciliation is mandatory only when the dispute relates to a public utility service, which the firm's business was, and on the decision of the Supreme Court in Niemla Textile Finishing Mills, Ltd. v. Second Punjab Tribunal ((1957) 1 LLJ 460 at 466.) The third contention, that the reference was bad as the Court was in seisin of the case, is without substance, as the Act has specifically provided a machinery for the adjudication of industrial disputes, whereas the proceedings in the civil court related to the dissolution of the firm, the employees being no parties to them. The next contention, that the firm having been dissolved by the preliminary decree, there can be no industrial dispute and no employer-employee relationship, is unacceptable, in view of the provisions of S.24FFF of the Act, which provides for the payment of compensation on closure of business, which can well be the subject of an industrial dispute.