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1997 (1) TMI 532

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..... ith the VDA. The employees union issued a notice of its intention to terminate the settlement with a view to submit a fresh charter of demands on 1.7.88. A fresh charter of demands was submitted by the employees union demanding an increase in the salary etc. on 17.7.88 but it was mentioned therein that the service conditions in force would continue to remain unchanged unless specifically agreed to otherwise. The employees union did not seek any change in the charter of demands in so far as the rate of VDA was concerned. No fresh settlement appears to have been arrived at between the parties but the appellants relying upon the notice of termination and the new charter of demands, unilaterlly freezed VDA with effect from 4.8.88. Negotiations between the employees union and the appellant, did not, however, produce any fresh settlement. The employees union (respondent No. 3) issued a demand notice to the employer on 21.1.91 demanding VDA with effect from 1.7.88. It was claimed that the unilateral freezing of the VDA was illegal and that the obligations in the settlement dated 9.12.1986 were in force and binding on the parties. The employees union, it appears apart from filling an appli .....

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..... ich had varied the terms of the settlement particularly to freeze the VDA after the expiry of the time bound settlement dated 9.12.86 was also pleaded and it was canvassed that the employees union could take recourse to seeking a reference under Section 10(1) of the Act or to file an application Sec.(2) of the Act put not to the provisions of Section 33C (1) of the Act. It was asserted that a settlement arrived at under the provisions of the Industrial Disputes Act ceased to be a settlement as defined under the Act, on its termination and turns itself into a mere contract between the parties and, therefore, on termination of such settlement, the rights recognised by the settlement cannot be enforced in the manner prescribed under Section 33C(1) of the Act but only as contractual obligations. The learned Single Judge rejected the plea that there had been an oral agreement between the parties which had in turn varied the terms of the settlement of 1986 were subsisting between the parties inspite of the time bound settlement and as such no fault could be found with the exercise of jurisdiction by the Labour Commissioner under Section 33C (1) of the Act. The Learned Single Judge also r .....

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..... gard to the maintainability of the application under Section 33C (1) of the Act, learned counsel for the respondents submitted that verification of the claim of money which stood determined under the 1986 settlement squarely falls within the scope of Section 33C (1) of the Act and therefore it was not obligatory on the part of the employees union to file any proceedings either under Section 10(1) or Section 33C (2) of the Act. For what follows, we have not been persuaded to take a view different than the one taken by the Labour Commissioner and the High Court. The Labour Commissioner, on the basis of the material on the record found that there had been no oral understanding or agreement superseding the 1986 settlement and therefore the obligations under the old settlement, even after the expiry of the period of its operation, would continue in force till fresh negotiations take place and a new settlement is arrived at. The learned Single Judge agreed with the Labour Commissioner and observed:- In the facts and circumstances of the case I am inclined to hold that the so called oral understanding whereby the workmen are purported to have given up or deferred their right to .....

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..... n accordance with the formula set out in the settlement dated 9th December, 1986. The learned Single Judge has rightly rejected the contention of the employers on this aspect of the unnecessary controversy raised on behalf of the petitioners. The alleged oral understanding has not been proved in law. There could not be any oral understanding in law so as to modify a written settlement. Thus, we find that on facts, it has been found by the Labour Commissioner and the High Court and in our opinin rightly, that there was no oral understanding or agreement as pleaded by the employer to give up or defer the payment of VDA by the employees union. The findings are based on proper appreciation of material on the record. Even otherwise, no oral agreement could be pleaded to vary, modify or supersede a written settlement. Section 2(p) of the Industrial Disputes Act, 1947 reads as under : Settlement means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as ma .....

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..... ding. Section 92 of the Evidence Act, 1872 also lays down that when the terms of any contract, grant or settlement, as are required by law to be reduced to the form of a document, have been proved as per the provisions of Section 91 of the Evidence Act, no evidence of any oral agreement or settlement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting varying adding to or subtracting from its items. Thus, both on facts of the instant case as well as on the interpretation of law, the conclusion arrived at by the High Court that there was no oral understanding between the parties and that the so called oral agreement pleaded by the appellants could not in any case vary the terms of the 1986 settlement is unexceptionable. Coming now to the second submission of the learned counsel for the appellants regarding the maintainability of the application under Section 33C(1) of the Act. According to the learned counsel for the appellants, the obligations which flow the 1986 settlement, after the expiry of the period of settlement, could be examined only through a reference under Section 10(1) of the Act or by .....

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..... e no difference to the maintainability of a claim petition under Section 33C (1) of the Act so long as the requirements of that sub-section are satisfied and the obligations sought to be enforced flow from an earlier settlement or an award or under chapter VA or VB of the Act. That the rate of VDA had been agreed to and provided for in the 1986 settlement is not in dispute. It is also not in dispute that the claim petition filed by the employees union under section 33C (1) of the Act was for the recovery of the VDA at the rate agreed to between the parties as per the terms of the 1986 settlement for the period for which the same had ben withheld by the employer. Thus, both the rate of VDA and the period for which it was payable were not in dispute could the employees union, therefore, not maintain an application under Section 33C (1) of the Act for the recovery of the VDA arrears? Section 33C is in the nature of execution proceedings designed to recover the dues to the workmen. Vide Section 83C (1) and (2), the legislature has provided a speedy remedy to the workmen to have the benefits of a settlement or award which are due to them and are capable of being computed in terms .....

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..... itles the workmen to apply to the appropriate Government for issuance of a certificate of recovery for any money due to them under an award or a settlement or under the provisions of chapter-VA and the Government. If satisfied, that a specific sum is due to the workmen, is obliged to issue a certificate for the recovery of the amount due. After the requisite certificate is issued by the Government to the collector, the collector is under a statutory duty to recover the amounts due under the certificate issued to him. The procedure is aimed at providing a speedy, cheap and summary manner of recovery of the amount due, which the employer has wrongfully withheld. It, therefore, follows that where money due is on the basis of some amount predetermined like the VDA, the rate of which stands determined in terms of the settlement an award stands determined in terms of the settlement an award or under Chapter V-A or V-B, and the period for which the arrears are claimed is also known, the case would be covered by sub- section (1) as only a calculation of the amount is required to be made. A Constitution Bench of this Court in Kays Construction Co. (P) Ltd. vs. State of Uttar Pradesh and .....

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