Vadakkel, J.
1. The T.C.C. Thozhilali Union (hereinafter, the Union) is a trade union registered under the Trade Union Act, 1926. Some of the workers of the Travancore Cochin Chemicals Ltd. (for brevity, the company) are members of this union. According to the company this union and another union together represent only 5.8% of the total number of the company's workers or less. As averred by the union in its plaint 'sufficient' number of the company's workers are members of this union. On 4th January, 1978, the company, and its workers represented by 6 unions arrived at a settlement of their then existing differences and drew up Ext. B-1 memorandum of settlement. The union is one of the parties to the settlement.
2. Section II Clause (5) of Ext. B-1 settlement, inter alia, provides that the defendant-company has recognised all the six unions who are parties the settlement as the collective bargaining agent of the workmen employed in the company. The said clause also says that the recognition given to the unions is subject to the provisions of any law in force from time to time and in accordance with the stipulations made in the Code of Discipline approved by the 15th Session of the All India Labour Conference, 1958. Clause (35) in Section XIV deals with the period of operation of exhibit B-1 agreement. It is stated therein that the period of operation of that agreement is 4 years from 1st April, 1976. The said clause says that the period of operation will continue in force and effect with out any change unless otherwise specified till the date of the expiry. The said clause goes on to say that 'notwithstanding the termination of the period of validity of this agreement it shall continue in force thereafter until another ''Long Term Settlement' is signed'.
3. It appears that when the period of 4 years was about to expire and when it was time to enter into a 'Long Term Settlement', the defendant-company refused to allow the plaintiff union to be a party to the long term agreement. It is how the case has been presented before me by the learned Counsel for the company. That attitude of the company provoked the union to file the suit from which this appeal arises.
4. The union approached the trial court stating that the defendant-company has decided to de-recognise the union and praying that the said decision be declared null and void and that it be set aside. The union also prayed that the defendant-company be restrained by injunction from conducting any negotiations with other unions without the joinder of the plaintiff. Union and from interfering with the plaintiff-union's right to participate in such discussions and negotiations. Further, it was prayed that the defendant - company be restrained from entering into any settlement or agreement with other unions.
5. One of the issues raised in the suit is as to whether the suit is maintainable and another is as to whether the civil court has jurisdiction to deal with the suit. The trial court considered these two issues together and held that court had no jurisdiction to entertain the suit and that, therefore, the suit was not maintainable. Entering these findings and without going into the merits of the case, the trial Court dismissed the suit. The lower Appellate Court, on appeal by the plaintiff-union, upheld the findings on issues Nos. 1 and 2. Consequently that Court dismissed the appeal. Hence this second appeal.
6. According to the averments in the plaint the union is bound to safeguard the interests of the workers who are its members, and, therefore, the Union is entitled to participate in the discussions and deliberations relating to the workers. The union, therefore, impugns the company's letter of 11th February, 1980, (Ext. B-4). By that letter the company informed the plaintiff-Union that 913 of the company's workmen constituting 94.2% of the total number of its workmen are members of one or the other of four other unions; that the plaintiff-Union and the remaining one union between them have got as their members not more than 5.8% of the total number of the company's workmen; and that, therefore, these two unions do not qualify for recognition as per the stipulations in the Code of Discipline mentioned in Ext. B-1 settlement.
7. In short, the dispute or difference between the company and the union can be said to be this, namely, 'whether in the discussion and deliberations in respect of or relating to the workers to be held by the company and the representatives of its workers, such of the company's workers who are members of the plaintiff-appellant-union should be permitted, to be represented by, and/or, to have as their bargaining agent, that union?'.
8. Such a dispute as above mentioned- to borrow the expression of Lord Denning 'a recognition dispute'-is an industrial dispute. In Beetham and Anr. v. Trinidad Cement, Ltd. [1960] I All ER 274 (279-280) P. C., speaking for the Board, the learned Law Lord said;
when this statement is taken in its setting-with the background of repeated refusal by the company to recognise the union over the two dismissals-the position at 16th April, 1956, can be put simply thus;
Here is this union knocking at the door of the company asking to be let in to negotiate; and the company time and time again refusing to open it, nay more, keeping it locked and barred against the union.
That was clearly a difference between them which subsisted at that very time. But then it was said that this was not a difference between the company and the workmen, as the Ordinance requires, but only a difference between the company and the union; and attention was drawn to the statement by Bennett, J., that a dispute between such bodies is not a trade dispute; see R. v. National Arbitration Tribunal, Ex p. Bolton Corporation [1941] 2 All ER 800, 815 : [1941] 2 KB 405, 421. To this their Lordships think that Lord Wright gave a sufficient answer when that case reached the House of Lords. He said [1942] 2 All ER 425, 435 : [1943] AC 166, 189:
It would be strangely out of date to hold, as was argued, that a trade union cannot act on behalf of its members in a trade dispute, or that a difference between a trade union acting for its members and their employers cannot be a trade dispute.The claim was made by the executive committee who were, by the rules entrusted with the general management of the union; and it was clearly within the scope of their authority to put forward a claim for bargaing status. If the union were able to obtain bargaining status; it would be able to promote the interest of its members far better than if it were unrecognised. Moreover, the claim had been brought to the attention of the branch who may fairly be assumed to have approved of it. The union can, therefore, properly be considered as acting for its members, and in consequence, the difference was one 'between employers and workmen'. Their Lordships are glad to find that in England a Divisional Court presided over by Lord Goddard, C. J. in a somewhat similar case came to a similar conclusion see 'The Times' newspapers, July 23, 1954-reported on another point [1954] 2 All ER 765 n.; 3rd Digest Supp. R.V. Industrial Disputes Tribunal, Ex p. American Express Co Inc.
In Torquay Hotel Co. Ltd. v. Cousine [1969] I All ER 522, (528) C.A., the same learned Law Lord followed his earlier decision in the Beethanrs case.
Was there a 'trade dispute'? There was, I think, a trade dispute between the defendant union and the Torbay Hotel. The Torbay Hotel employed workers of the defendant union. The defendant union claimed that it should be recognised as having authority to negotiate on their behalf. The Torbay Hotel refused to recognise them. Such a recognition dispute is, I think, clearly a trade dispute: see Beetham v. Trinidad Cement Co. Ltd. 1960 1 All ER 274; (1960) AC 132; and, none the less so, because it springs out of rivalry of one union with another union'. The respective provisions considered in the Beetham's case and the Torquay Hotel's case were substantially the same definition of the term ''trade dispute', though occurring in two different statutes, Section 2(1) of the Trade Disputes Act (Arbitration and Inquiry) Ordinance (Laws of Trinidad and Tobago, 1950) in the first mentioned case, and Section 5(3) of the Trade Disputes Act, 1906, in the other, both of which correspond to Section 2(k) of the Industrial Disputes Act, 1947, defining an industrial dispute, with this difference viz., a dispute or difference between employers and employers is not included in those definitions as is in Section 2(k).
10. A trade union, in claiming locus standi to represent its members in the employment of a management, does so on behalf the workers who are its members, and therefore, where such claim is not accepted by the employer, and the employer refuses to recognize the union as those workers' representative and bargaining agent, a difference or dispute arises between the employer, and such of his employees who are members of the union which claims the status of a bargaining agent. When such difference is 'connected with the employment, non-employment, the terms of employment, or with the conditions of labour, of any person' it is an industrial or trade dispute. In the Beetham's case, the union was not permitted to sponsor the cause of two of its members, Bobb and Simon, who were dismissed from service by the employer and, therefore, the dispute was a trade dispute. In the Torquay's case it was found that there was a trade dispute between the union and the Torbay Hotel which had employed members of the union, and that there was no such dispute between the union and the Imperial Hotel (owned by the Torquay Hotel Co. Ltd.) which had not employed any member of the union.
11. Apply the above principle. The plaintiff-appellant union seeks to be recognised by the defendant - respondent -company as the bargaining agent of such of the company's-workers who are members of this union so that this union may safeguard their interests in relation to their terms of employment and / or their conditions of labour. The company refuses to recognize the union as the representative of the union-members who are in the employment of the company in the discussions and negotiations relating to Long Term Settlement affecting their terms of employment and conditions of Labour. Therefore, the dispute is an industrial dispute as defined in Section 2(k) of the Industrial Disputes Act, 1947.
12. Dealing with the question of jurisdiction of civil court in respect of matters falling under the industrial Disputes Act, 1947, the Supreme Court, in Premier Automobiles Ltd. v. K.S. Wadke 1975-II L.L.J. 445, enunciated the following 4 principles.
(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3) If the Industrial dispute relates to the enforcement of a right or an obligation created under the Act, the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act, such as Chapter VA, then the remedy for its enforcement is either Section 33C or the raising of an Industrial dispute as the case may be.
13. It has already been found that the dispute is an industrial dispute. Therefore, the suit does not fall within the first principle stated. Does it fall under the second principle stated by the Supreme court? Can it be said that this industrial dispute is one 'arising out of a right or liability under the general or common law. and not under the Act?'
14. Common or general law did not recognize collective bargaining or any body that is entitled to represent the body of workmen in negotiations relating to employment, non-employment, the terms of employment or with the conditions of labour, of any person. That law had in view only an individualistic society recognizing relations between individuals as master and servant. Collective bargaining became a norm only when large scale industries developed and it became necessary to regulate the capital - labour relations with a view to better the working conditions of labour and sustain industrial peace in the country. When individual bargaining gave way to collective bargaining, who would speak for the collective body of workmen? Legislature stepped in and enacted the Trade Unions Act, 1926, which provides for registration of trade unions and defines the law relating to registered trade unions. Under Section 13 of that Act, every registered trade union is a body corporate with power to acquire and hold movable and immovable property and to contract; and can sue and be sued. Though this Act confers corporate personality on registered trade unions, the Act does not make it obligatory on the part of the employers to recognise even registered trade unions despite they are truly representative. (With a view to make it obligatory on the part of the employers to recognise truly representative registered trade unions the legislature has passed the Indian Trade Unions (Amendment) Act, 1947, Act XLV of 1947, but it does not appear to have been brought into force till now. This Act seeks to introduce into the parent Act, Chapter III-A provisions wherein, inter alia, enumerate the conditions required for such obligatory recognition, and provide for the machinery to obtain recognition and to resolve disputes relating to recognition). Therefore, obligatory recognition of trade union as the bargaining agent of its members is unknown to law-both common law and statute law. As at present, the only provision in that behalf is that contained in Section 36 of the Industrial Disputes Act, 1947, where-under in any preceding under' that Act a workman who is a party to an industrial dispute is entitled to be represented by '(a) any member of the executive or other office bearer of a registered trade union of which he is a member, or (b) any member of the executive or other office bearer of a federation of trade unions to which the trade union referred to in Clause (a) is affiliated'; and '(c) where the worker is not a member of any trade union, by any member of the executive or other office bearer of any trade union connected with...the industry in which the worker is employed and authorised in such manner as may be prescribed'. The result is: recognition by an employer of a trade union as a representative of its members and as their bargaining agent is a matter of volition on the part of the employer.
15. The position, therefore, is -(i) ''recognition dispute' is an industrial dispute; (ii) recognition is a matter of volition on the part of the employer; (iii) a trade union has neither common law right nor statutory right which enables and entitles it to compel an employer to give recognition to it as the bargaining agent of its members; and (iv) since it has no such common law right, a 'recognition dispute', cannot be said to be one emanating from, and emerging out of, any right under the general common law; and, there fore, (v) principle No. 2 stated by the Supreme Court in the Premier Automobiles case is not attracted to a 'recognition dispute', no matter that a trade union has no such right under any statute either.
16. It is contended that ext. B-1 settlement is a settlement falling under Section 18(3) of the Industrial Disputes Act, 1947, and that, therefore, the same is binding on all parties to the industrial dispute. On that basis the argument is that the company and the union who are parties to Ext. B-1 settlement are bound by the terms of settlement arrived at and mentioned in exhibit B-1. It is further argued that, therefore, the union is entitled to enforce the rights flowing from Ext. B-1 settlement. Suffice to point out that Ext. B-1 settlement is not a contract recognised by the general or common law, the principles of which are enshrined in the Indian Contract Act, 1872 The binding nature of Ext. B-1 settlement is derived from the statutory provision contained in Section 18(3) of the Industrial Disputes Act. 1947. If any right arises thereunder or flows therefrom the same is a right in relation to an industrial dispute created under Industrial Disputes Act and therefore, the only remedy that can be sought for by the union is, to get an adjudication of the same as contemplated by the provisions of the Act. In short, the rights, if any, under Ext. B-1 settlement can be enforced only by invoking the relevant provisions, if any, of the aforesaid Act. The same cannot be enforced by a suit invoking the jurisdiction of a civil Court.
17. There was some argument before me as regards the advisability of having some statutory provisions enabling a union to agitate a 'recognition dispute' before a competent forum, instead of leaving such a matter to be raised as an industrial dispute by taking resort to direct action by workers who are members of the trade union. It is a matter in the realms of policy decision of the executive and I do not think that it would be proper to say anything thereon, except, perhaps, to invite the attention of the executive to this argument, so that it may consider whether such workers have to be driven to the need of raking up a dispute on that score, which very often, may result in direct action and breach of industrial peace.
18. In view of what is stated above, the lower courts rightly held that the suit brought by the union in respect of the 'recognition dispute' cannot be entertained by a civil court. In the result, the second appeal fails and it is dismissed, but, in the circumstances of the case, without any order as to costs.