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TMI Blog1999 (12) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... risen between the Management of National Engineering Industries Ltd., Jaipur and President, National Engineering Industries Workers' Union, B-4, M.L.A. Quarters, Jaipur. Whereas the Conciliation Officer, Jaipur has reported that no settlement was arrived at: Whereas the State Government after considering the report of the above Conciliation Officer satisfied that the matter is fit to be referred to the Industrial Tribunal. Therefore, now the State Government under powers conferred on it under Section 10, Sub-section (1), Clause (d) read with Section 12, Sub-section (3) of the Industrial Disputes Act, 1947 (Act 14 of the year 1947) hereby refers the above dispute for adjudication to Industrial Tribunal, Rajasthan, Jaipur duly constituted by the State Government under the Industrial Disputes Act, 1947 (Act 14 of the year 1947). DISPUTE In the 24 point charter of demands made by the President, National Engineering Industries Workers' Union, B-4, M.L.A. Quarters before the Management of National Engineering Industries Ltd., Jaipur (Charter of demands annexed) is fair and proper. If not to what the workmen are entitled? Annexed : Charter of demands By Order of the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en filed a writ petition in the High Court requiring the State Government to -make reference of their disputes to the Industrial Tribunal under the provisions of the Act. This writ petition was decided by a Division Bench of the High Court on March 23,1989 whereby it was directed to the State Government to decide the question on the failure report of the Conciliation Officer whether to make or not to make the reference. The State Government was required to decide the question within two months from the date of the judgment, i.e., March 23, 1989. High Court also observed that it would be open to the appellant to raise all the contentions before the State Government and the State Government would or would not make a reference only after hearing the parties. However, before the decision of the High Court, the State Government, in the meantime, issued the notification dated March 17, 1989 for reference of the disputes relating to the demands raised by the Workers' Union. We have already set out above the notification dated March 17, 1989 making reference of the disputes to the Industrial Tribunal. Appellant thereafter submitted a representation dated April 3, 1989 to the State Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand, it was contended by the Workers' Union that: 1. The tripartite settlement was invalid inasmuch as it was entered into on a Sunday. 2. All the demands raised by the Workers' Union had not been covered in the tripartite settlement and reference could have been made in respect of those demands. 3. Tripartite settlement was not entered into during the course of conciliation proceedings and, thus, a bar could not have been raised against the reference. In this connection reference be made to Section 18(1)7of the Act. 7. In support of his submissions, Mr. G. B. Pai, learned Counsel for the appellant, said that it was not open to the State Government to invoke its power of reference under Section 10 of the Act during the pendency of the tripartite settlement dated 4-10-1986 arrived at during the conciliation proceedings. The settlement was binding on the members of the Workers' Union as well under Section 18(3) of the Act who had in fact taken advantage of the benefits under the settlement. It could not be said that any industrial dispute existed or was even apprehended at the time the State Government invoked its power under Section 10(1) of the Act in makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in directing the appellant to raise the issue of contravention of the direction of the High Court before the Industrial Tribunal. The State Government should have recalled its order of reference and heard the appellant before taking final decision to make the reference or not. 9. Mr. Pai further submitted that the conciliation settlement has been equated which an award by various judgments of this Court. A settlement being conciliation settlement was thus, fully binding on the members of the Workers' Union. The settlement could be challenged on the grounds of fraud, undue influence or it being mala fide. There was no such plea raised by the Workers' Union. Industrial Tribunal could not examine the justness and fairness of the settlement entered into during the conciliation proceedings. As a matter of fact, a perusal of the comparative charter of demands that raised by the Labour Union and the Workers' Union would show that what had been demanded by the Labour Union on either being the same, similar or identical to the demands raised by the Workers' Union. Rather the Labour Union had raised some additional demands not raised by the Workers' Union. There was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice to the Workers' Union for entering into any settlement when settlement is with the recognised representative union. Charter of demands of the Workers' Union cannot be termed as a notice under Section 19 of the Act. Thus concluded Mr. Pai. 10. In the counter affidavit filed by the Workers' Union, the fact that the charter of demands of the Workers' Union was identical to that of the Labour Union has been denied though if we refer to the writ petition filed by the Workers' Union, it has been so stated. This is how Workers' Union said in its writ petition: The petitioner union was also not asked to participate, in that conciliation proceedings though the demand charter was identical in almost all the respects. 11. The learned single Judge in his judgment which was upheld by the Division Bench, however, stated that "it is also born out from the charter of demands submitted by respondent No. 3 (Workers' Union) and the settlement dated October 4,1986 that all the demands raised by respondent No. 3 are not covered by the settlement". It is submitted by the Workers' Union that its demands at serial numbers 5,6,11,18, 19, 20,21 and 23 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are entitled? 2. Whether the strike of the workers and working Journalists from 27th April, 1959, and the consequent lockout by the management of the Express Newspapers Private Ltd. are justified and to what relief the workers and the working Journalists are entitled? This was challenged by the appellant by filing a writ petition in the Madras High Court. While the learned single Judge held in favour of the appellant, the Division Bench in appeal filed by the respondents reversed the same. This Court said that the true legal position in regard to the jurisdiction of the High Court to entertain the appellant's petition even at the initial stage of the proceedings proposed to be taken before the District Tribunal was not in dispute. It said that there was no dispute that in law, the appellant was entitled to move the High Court even at the initial stage to seek to satisfy it that the dispute is not an industrial dispute and so, the Industrial Tribunal has no jurisdiction to embark upon the proposed enquiry. The Division Bench of the High Court in appeal was, however, of the view that having regard to the nature of the enquiry involved in the decision of the preliminary issue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt was also of the view that the provisions of Section 17 of the Act were mandatory and no writ, therefore, could be issued. The matter then came to this Court. The Court rejected the argument that the provisions of Section 17 of the Act were directory and not mandatory. This Court then noticed the provisions of Section 2(p), Section 18(1) and (3) and Section 19 of the Act. It was contended that the main purpose of the Act was to maintain peace between the parties in an industrial concern and where, therefore, parties to industrial disputes had reached a settlement which was binding under Section 18(1), the dispute between them really came to an end. It was submitted that the settlement arrived at between the parties should be respected and industrial peace should not be allowed to be disturbed by the publication of the award which might be different from the settlement. The Court observed that there was no doubt that the settlement of disputes between the parties themselves was to be preferred, where it could be arrived at, to industrial adjudication, as the settlement was likely to lead to more lasting peace than an award, as it is arrived at by the free will of the parties and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y very well be considered to have become infructuous and so the Government should refrain from publishing such an award because no dispute remains to be resolved by it. 17. This Court also said that in case there is a dispute regarding the bona fide nature of the settlement, that would be yet another industrial dispute which the Government may refer to for adjudication. 18. In Barauni Refinery Pragatisheel Shramik Parishad v. Indian Oil Corporation Ltd. [1990]3SCR282 , the appellant was a trade union representing a faction of workmen in the Indian Oil Corporation Ltd. (IOCL). There were two divisions in the IOCL, namely, (1) the Marketing Division and (2) Refinery and Pipe Lines Division. The age of superannuation of the staff in the Marketing Division was 60 years whereas the age of superannuation for the Refinery and Pipe Lines Division was fixed at 58 years. Clause (20) of the standing orders framed under the Industrial Employment (Standing Orders) Act, 1946 concerning the Barauni Refinery provided that every employee shall retire from service on completing the age of 58 years. Extension of service could be granted for a maximum period of five years subject to the employee bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n challenging the condition of medical fitness. One of the questions raised was thus: Whether the settlement arrived at under Section 18(3) and Section 19(2) of the Industrial Disputes Act, 1947, between the petitioner and the workmen represented by their recognised majority union and which settlement was in. force when impugned orders were made, had put any bar on the rights of the workmen to approach the authorities under the Industrial Employment (Standing Orders) Act, 1946 for seeking modification of the Standing Orders with regard to the fixation of the age of superannuation of the workmen? 19. The High Court came to the conclusion that the settlement arrived at in conciliation proceedings was binding on the workmen and one of the clauses of the settlement kept the service conditions intact and another clause did not permit raising of any demand throwing an additional financial burden on the IOCL, it was not permissible to modify the certified Standing Order by an amendment as that would alter the service conditions and increase the financial burden on the management. High Court, therefore, quashed the orders amending the Standing Orders. Aggrieved the union approached this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on representing all the workmen on the quantum of increase in wages etc. It was further agreed that the issue of non-employment of 29 dismissed workmen would be discussed separately. On that basis all the workmen except the 29 dismissed workmen agreed to resume work. Subsequently a settlement was arrived at between the appellant and the respondent union under Section 12(3) of the Act that the issue of non-employment of 29 dismissed workmen would be discussed in proceedings to be initiated by the Joint Labour Commissioner. Meetings were held by the Joint Labour Commissioner but no settlement could be reached. Report of the failure of conciliation proceedings was submitted to the State Government which referred issue of non-employment of 29 workmen for adjudication to the Labour Court. This Court noticed that the industrial dispute was referred for adjudication pursuant to the demand espoused by all the workmen and raised by the second respondent union under Section 2(k) of the Act and that of the said 29 workmen who were members of the respondent union had authorised the second respondent to represent them before the Conciliation Officer whereafter reference was made before to the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he absence of such allegations a settlement in the course of collective bargaining is entitled to due weight and consideration. This Court then observed as under (Para 25 of AIR SCW and AIR): It has to be kept in view that under the scheme of labour legislations like the Act in the present case, collective bargaining and the principle of industrial democracy permeate the relations between the management on the one hand and the Union which resorts to collective bargaining on behalf of its members workmen with the management on the other. Such a collective bargaining which may result in just and fair settlement would always be beneficial to the management as well as to the body of workmen and society at large as there would be industrial peace and tranquillity pursuant to such settlement and which would avoid unnecessary social strife and tribulation on the one hand and promote industrial and commercial development on the other hand. Keeping in view the aforesaid salient features of the Act the settlement which is sought to be impugned has to be scanned and scrutinised. Settlement of labour disputes by direct negotiation and collective bargaining is always to be preferred for it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly the said settlement could be treated as an agreement arrived at between all the workmen as per the first proviso to Section 25-C and, therefore, the appellants could not claim anything more than what was permissible and payable to them as per the binding terms of the settlement dated 5-5-1980. The writ petition of Respondent 1 was, therefore, allowed and then claim petition under Section 33-C(2) as moved by the appellants was dismissed. 22. To answer the question so raised, this Court had a look at the statutory scheme of the Act in depth and observed: The aforesaid relevant provisions of the Act, therefore, leave no room for doubt that once a written settlement is arrived at during the conciliation proceedings such settlement under Section 12(3) has a binding effect not only on the signatories to the settlement but also on all parties to the industrial dispute which would cover the entire body of workmen, not only existing workmen but also future workmen. Such a settlement during conciliation proceedings has the same legal effect as an award of Labour Court, or Tribunal or National Tribunal or an arbitration award. They all stand on a par. It then held: On the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or not. This is how this Court considered this question: A settlement was, however, arrived at between the management and the Union thereafter, whereunder it was among other things, agreed that the employees who were holding the post of Office Superintendent (Non-Supervisory) would be deemed to have been appointed to the post of Assistant Personnel Officer from the date they were appointed as Officer Superintendent (Non-Supervisory) and that the services rendered by them both in the post of Office Superintendent (Non-Supervisory) as well as in the post of Assistant Personnel Officer would together be taken into consideration as a qualifying period for promotion to the post of the Junior Executive Officer. It was further agreed that the employees concerned would not, however, claim any arrears of pay. This was done because the respondent-Corporation was in a bad financial shape. The contention that the settlement of 13-9-1990 is not binding on the appellants because they were in a Supervisory category and were not workmen and hence the Union had no right to represent them, has no substance in it for two reasons. Firstly, in the settlement of 14-5-1987 arrived at with the Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f fraud, misrepresentation or concealment of facts or even corruption and other inducements it could be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the Conciliation Officer must be fair and reasonable. A settlement which is sought to be impugned has to be scanned and scrutinized. Sub-sections (1) and (3) of Section 18 divide settlements into two categories, namely, (1) those arrived at outside the conciliation proceedings and (2) those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all the parties to the industrial disputes, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative union under the Rajasthan Act (Rajasthan Act XXXIV of 1950). Under Section 9-D10of the aforesaid Rajasthan Act any Union which has for the whole of the period of at least three months during the period of six months immediately preceding the calendar month in which it so applies under this section a membership of not less than fifteen per cent of the total number of workmen employed in unit of an industry may apply in the prescribed form to the Registrar for registration as a Representative Union. Then under Section 9-F11 registration of a representative union can be cancelled on various grounds mentioned therein and one of such grounds is if, after holding such an inquiry, if any, as the Registrar deems fit he is satisfied that the registered union is being conducted not bona fide in the interest of the workmen but in the interest of the employers to the prejudice of the interest of the workmen. We have already quoted Section 9-E as to how a representative union is to be registered. Proviso to that Section makes it clear that if there are two or more unions fulfilling the criteria laid down in Section 9-D and apply for registration then the union having the largest membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the notice of the High Court of its notification dated March 17, 1989 making the impugned reference. It appears to us that the reference had occasioned while the judgment had been reserved by the High Court. In any case it was expected of the State Government to bring to the notice of the High Court before making a reference its decision to make the reference. After the judgment had been announced and directions issued by the High Court to hear the appellant it was incumbent of the State Government, in the circumstances of the case, to recall the reference. It could not direct the appellant to raise its objection to reference before the Industrial Tribunal for which Industrial Tribunal certainly lacked jurisdiction. State Government before making the reference did not consider all the relevant considerations which would clothe it with the power to make the reference under Section 10 of the Act. We find substance in the submissions of Mr. Pai. Wholesale reference of all the dispute in the charter of demands of Workers' Union for adjudication was also bad inasmuch as many of such disputes were already the subject matter of tripartite settlement. This also shows non-applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government or an officer authorised in this behalf by the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. (4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. (5) If, on a consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the interest of the employers to the prejudice of the interest: of the workmen. (2) Once a union has been registered as a representative union under this Act the registration of the union shall be held valid for a period of two years from the date of its registration and shall continue to hold valid unless the registration is cancelled under Section 9-F of this Act or another union is registered in its place according to Section 9-G of this Act. 6. 19. Period of operation of settlement and awards.- (1) A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute. (2) Such settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of six months from the date on which the memorandum of settlement is signed by the parties to the dispute, and shall continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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