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Abad Dairy Dudh Vitran Kendra

Sanchalak Mandal v Abad Dairy and
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Supreme Court of India

8 August 1999

Abad Dairy Dudh Vitran Kendra Sanchalak Mandal

v
Abad Dairy and Others
Case No : C.A. No. 3609-10/1989 (sic)
Bench : S. Ranganathan
Citation : 1999 Indlaw SC 243, (1999) SCC (L&S) 1079, 1999 (2) LLJ 1408
Summary : Labour & Industrial Law - Industrial Disputes Act, 1947 - Members of the
co-operative society - Workmen - Meaning of - Whether members of appellant
association were workmen? - Held, though there are agreements between parties,
not only is interpretation of agreements a matter of dispute, it will also be necessary
to consider whether agreement reflects real position or whether conduct of parties
and other materials placed on record show that appellants were employees as
suggested by appellants and not commission agents as suggested on behalf of
respondents - Set aside the order of the High Court and direct the State Govt. to
refer to an Industrial Tribunal all the disputes between the parties - Appeals allowed.
The Order of the Court was as follows:
Special leave granted.
1. These are appeals from orders passed by the Gujarat High Court in two writ
petitions filed by the appellants. According to the appellants, they were
"workmen" under the Abad Dairy, Ahmedabad and, as certain disputes had
arisen between them and their employers, the disputes had to be referred to an
Industrial Tribunal for adjudication under the Industrial Disputes Act, 1947. The
Government, however, declined to make a reference on the ground that the
members of the appellant Association were not workmen.
2. The appellants thereupon filed a writ petition in the Gujarat High Court
(Petition No. 4587 of 1987) seeking, inter alia, a direction to the Government to
refer the disputes between the members of the Association and employers for
adjudication to the Industrial Tribunal. In the meantime, it appears the
respondents had taken action to terminate their agreement with some of the
members of the Association. Thereupon the appellants filed another writ petition
(Petition No. 2492 of 1988) seeking certain reliefs which need not be set out
here.

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3. The High Court examined the matter and came to the conclusion that the
members of the appellant Association were not "workmen" within the meaning of
the Industrial Disputes Act. So it dismissed the writ petitions, leaving the
appellants to take recourse to ordinary civil Courts to ventilate their grievances,
if so advised.
4. We have heard counsel for the appellants as well as counsel for the
respondents. We are of the opinion that having regard to the facts of the cases
as well as the voluminous evidence sought to be adduced by both sides, the
question as to whether the members of the Association are workmen or not
requires detailed investigation of facts.
5. It is true that there appeared to be certain agreements entered into between
the respondents and the appellants but it is the case of the appellants that,
agreement apart, there is plenty of evidence in the form of instructions and
circulars issued by the respondents which would show that the members of the
Association were really workmen and not commission agents as alleged. In fact,
in pursuance of the permission given by this Court to file affidavits the parties
have file affidavits running to several pages setting out facts in support of their
respective contentions. We have also heard both counsel for some time and are
satisfied that the issue requires detailed examination of facts and can be
satisfactorily adjudicated upon only by a Tribunal.
6. We are of the opinion that neither a writ proceeding in the High Court nor an
appeal under Article 136 is the proper forum in which these factual contentions
and allegations should be gone into. The High Court itself has observed at
various places in its judgment that the nature of the dispute between the parties
and the facts and circumstances were such that a writ petition was not the
appropriate forum to enter into such facts but seems to have allowed itself to be
persuaded to go into the question perhaps because the counsel on both sides
were not averse to that course.
7. We however think that the High Court should not have done this but, instead,
should have directed the Government or refer the disputes between the parties
to an Industrial Tribunal, making the issue of the jurisdictional fact viz. as to
"whether the appellants are workmen ?" also one of the terms of reference. We
say this because, though there are agreements between the parties, not only is
the interpretation of the agreements a matter of dispute, it will also be necessary
to consider whether the agreement reflects the real position or whether the
conduct of the parties and other materials placed on record show that the
appellants were employees as suggested by the appellants and not commission
agents as suggested on behalf of the respondents. Also, the only ground on
which the State Government declined to make a reference was that the
appellants were not workmen. This view is not so obvious or patent on the facts
before us.
8. In the circumstances, we think the best course is to set aside the order of the
High Court and direct that the matter be gone into by an Industrial Tribunal after
the Government has made an appropriate order. We, therefore, allow these
appeals, set aside the order of the High Court and direct the State Government
to refer to an Industrial Tribunal all the disputes between the parties including
the preliminary question whether the appellants are workmen within the

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meaning of the Industrial Disputes Act or not.

9. The State Government is directed to make the above reference within a
period of two months from today. In the meantime, in the interest of justice,
status quo should be maintained by both parties, as already directed by this
Court on December 13, 1988. This shall continue for a period of ten weeks from
today. This will not, however, preclude the respondents from taking such action
against individual members of the appellants for misconduct, breach of the
agreement or the like as maybe open to them in law, in case any occasion
should arise therefore.
10. We wish to make it clear that in view of our above conclusion, we express
no opinion on the findings contained in the judgment of the High Court on the
evidence before it as to whether the appellants are workmen or not and leave
the matter to be decided afresh by the Tribunal on the evidence led before it
unfettered by the findings of the High Court in this behalf.
11. In the view we have taken, the appeal against the order in Petition No. 4587
of 1987 is allowed as indicated above. So far as the second appeal against
Petition No. 2492 of 1988 is concerned, the counsel for the appellants seeks
permission to withdraw the writ petition with liberty to take such other steps or
proceedings in regard to the reliefs sought therein as may be open to them in
law. We grant this prayer, Petition No. 2492 of 1988 will consequently stand
dismissed as withdrawn with liberty as prayed for.
Appeals disposed of.
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