Judgment

P. N. SHINGHAL J.:- This appeal by special leave by directed against the order of Industrial Tribunal (III) U. P. at Kanpur dated July 14, 1978, deciding the following two preliminary issues which were raised by the Indian Oxygen Ltd. (hereinafter referred to as the Company) against the Company.

"(1) Whether present dispute is not an industrial dispute in the light of the objections raised by the employers in paragraph (1) of their Written Statement?

(2) Whether the present Order of Reference is bad in law in the light of the objections raised by the employers in paragraph (1) of their Written Statement?"

2. The Company employed some 5400 workmen in its establishment in West Bengal, Bihar, U. P. Assam, Punjab, Delhi, Maharashtra, Gujarat, Tamilnadu, Andhra Pradesh, Karnataka and Kerala. There were several recognised trade unions of the workmen. The All-India Federation of Indian Oxygen Employees Union (hereafter referred to as the Federal Union) was the recognised federation of some of the trade unions from 1973 onwards. The Indian Oxygen Shramik Sangh (hereafter referred to as the Shramik Sangh), which represented some of the workmen at Kanpur, was affiliated to the Federal Union. There was another union known as the Indian Oxygen Karamchari Union (hereafter referred to as the Karamchari Union) which was registered much earlier but its constitution was revised because of the merger of two other unions in it and was approved by the Registrar of Trade Unions on May 10, 1973. It was not a member of the Federal Union.

3. The Federal Union raised a charter of demands in February 1973 of all India nature and a settlement was arrived at on June 22, 1973, according to which the demand for revision of pay scales was to be taken up for discussion at a mutually convenient date. A similar settlement was made with the Shramik Sangh on November 22, 1973. It was followed by negotiations and an order was made for the constitution of a Conciliation Board under S. 3 (d) of the U. P. Industrial Disputes Act, 1947 (hereafter referred to as the U. P. Act). A memorandum of settlement was drawn up on April 30, 1974 between the Company and the Shramik Sangh. It was agreed, inter alia, that the question of revision of the dearness allowance of the Kanpur unit employees would be negotiated by the Company with the Federal Unit and/or the Union on or before April 1, 1975.

4. In the meantime, the Karamchari Union made an application on Jan. 23, 1975, for the constitution of a Conciliation Board under S. 3 (d) of the U. P. Act and the Board was constituted by an order dated January 30, 1975. The Company raised objections to the constitution of the Board on February 24, 1975, but the proceedings were commenced by the Board on February 26. 1975 and March 19, 1975 was fixed for appearance. The Company however proceeded with its efforts for a settlement with the federal Union and entered into a settlement with it on June 30, 1975. In order to bring it under the purview of the U. P. Act, the Shramik Sangh applied on July 18, 1975, for the constitution of conciliation Board under that Act and a Conciliation Board was constituted on July 29, 1975. A memorandum of settlement about the dearness allowance was drawn up with the Shramik Sangh on Aug. 27, 1975, in accordance with rule 5-A of the U. P. Industrial Disputes Rules, 1957, in Form 1A, even though the dispute regarding the variable dearness allowance, which had been raised by the Karamchari Union earlier was pending all the while. The settlement with the Shramik Sangh made a specific reference to the all-India Federation settlement which had been made on June 30, 1975. That settlement with the Federal Union was in fact annexed to the settlement with the Shramik Sangh and was treated as a settlement under U. P. Act.

5. The dispute regarding the variable dearness allowance which had been raised by the Karamchari Sangh by its application dated January 23, 1975 for the constitution of a Conciliation Board, did