TaxTMI 
TaxTMI 
1999 (12) TMI 887
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.... dated 17 March, 1989 Notification Whereas an industrial dispute3as described below has arisen 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' Unio....
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....der this tripartite settlement. 4. On the charter of demands raised by the Workers' Union and on which the Conciliation Officer had submitted a failure report, the State Government did not make any order for reference of the disputes nor did it refuse to make reference. Workers' Union then 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....
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....rnment. The order of the State Government making reference could not be termed as administrative order inasmuch as there was a direction by the High Court that appellant be heard. The State Government should have brought to the notice of the High Court the reference having already been made when the matter was still pending before the High Court. 6. On the other 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 tripartit....
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.... High Court by its order dated March 23, 1989 to give an opportunity to the appellant of hearing before taking a decision as to whether or not any reference should be made at the instance of the Workers' Union. The order of reference was made during the pendency of writ petition by the Workers' Union and only six days before the High Court passed the order. In these circumstances the State Government was not justified 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....
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....rt failed to exercise its jurisdiction envisaged under Article 226 of the Constitution. All through this period since 1972, appellant has entered into more than six settlements with the Labour Union which is recognised and representative Union. Substantial number of workers of the appellant are members of the representative Labour Union which fact has not been denied by the Workers' Union. It is not necessary to give any 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....
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....he Management of Express Newspapers Ltd. v. Workers and Staff Employed under it (1962)IILLJ227SC the State Government made reference to the Industrial Tribunal under Section 10(1)(d) of the Act on the following two items of dispute :- 1. Whether the transfer of the publication of Andhra Prabha and Andhra Prabha Illustrated Weekly to Andhra Prabha Private Ltd. in Vijaywada is justified and to what relief the workers and the working Journalists 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....
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....the publication of the award, parties to the dispute came to a settlement. Request was, therefore, made to the State Government to withhold the publication of the award. The State Government, however, did not accede to this request as, according to it, it was mandatory provision of law to publish the award. A writ petition was filed in the High Court under Article 226 of the Constitution praying that the Government might be directed to withhold the publication of the award. This was dismissed as the High Court 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 se....
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....pecial situation arising in such cases. 16. The Court also examined the issue from another angle and said: The reference to the tribunal is for the purpose of resolving the dispute that may have arisen between employers and their workmen. Where a settlement is arrived at between the parties to a dispute before the tribunal after the award has been submitted to Government but before its publication, there is in fact no dispute left to be resolved by the publication of the award. In such a case, the award sent to Government may 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 Ma....
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....20) of the Standing Orders now fixing the retirement age of the workmen at 60 years. IOCL filed an appeal against that order before the appellate authority. Its appeal though dismissed but it was ordered to that every workmen shall generally retire on attaining the age of 58 years and if the workmen is found medically fit, he shall be retained in service up to the age of 60 years. Both IOCL as well as the union filed two different writ petitions in the Delhi High Court. IOCL challenging the modification of Clause (20) of the Standing Orders and the Union 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 ....
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....t but also 6n others. That is why a settlement arrived at in the course of conciliation proceedings is put on par with an award made by an adjudicatory authority. This Court upheld the judgment of the High Court. 19A. In K. C. P. Limited v. Presiding Officer (1997)ILLJ308SC a labour dispute had erupted at the engineering unit of the appellant employing about 500 workmen. The workmen were demanding higher amount of bonus. There were strike and lockout. Appellant dismissed 29 workmen on the charges of misconduct after holding enquiries. An agreement was reached between the appellant and the union 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 settleme....
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....this Court in Herbertsons Ltd. v. Workmen [1977]2SCR15 where this Court had said that when a recognised Union negotiates with an employer the workers as individuals do not come into the picture. It is not necessary that each individual worker should know the implications of the settlement since a recognised Union, which is expected to protect the legitimate interests of labour enters into a settlement in the best interests of labour. This would be the normal rule. There may be exceptional cases where there may be allegations of mala fides, fraud or even corruption or other inducements. But in the 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....
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....e union of which he is a member had taken part in the conciliation proceedings but had refused to sign the settlement and when such settlement seeks to restrict the right of lay-off compensation payable to such workman as per the first proviso to Section 25-C of the Act. 21. Labour Court had held in favour of the workmen. It was challenged by the respondent in a writ petition in the Madras High Court. The High Court by its impugned judgment held that the settlement arrived at during conciliation proceedings under Section 32(3) was binding on all the workmen being parties to industrial dispute as per Section 18(3) of the Act and consequently 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 ....
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....are handed over to the union representing such workman. The unions espouse the common cause on behalf of all their members. Consequently, settlement arrived at by them with management would bind at least their members and if such settlement is arrived at during conciliation proceedings, it would bind even non-members. Thus, settlements are the live wires under the Act for ensuring industrial peace and prosperity. 23. In Ram Pukar Singh v. Heavy Engineering Corporation (1995)ILLJ214SC this Court said that a settlement arrived at between the management and the sole recognised union of workmen under Section 12(3) read with Section 18 of the Act would be binding on all the workmen whether members of the union 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 r....
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....urt in its writ jurisdiction. It is the existence of the industrial tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended appropriate government lacks power to make any reference. A settlement of dispute between the parties themselves is to be preferred, where it could be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace than an award. Settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of 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 a....
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....s Act, 1926 any seven or more members of a trade union can get the trade union registered under that Act. If every trade union having few members is to go on raising a dispute and the State Government making reference again and again the very purpose of settlement is defeated. Once there is a representative union, which in the present case, is the Labour Union, it is difficult to see the role of the Workers' Union. If there are number of trade unions registered under the Trade Unions Act, 1926 not entitled to be registered as representative unions and they raise disputes, industrial peace would be a far cry. Under Section 2(oooo)9 of the Rajasthan Act 'representative union' means a union for the time being registered as a representative 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....
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....t is not that demands, which are left out, should be specifically mentioned in the settlement. It is not the contention of Workers' Union that tripartite settlement is in any way mala fide. It has been contended by the Workers' Union that the settlement was not arrived at during the conciliation proceedings under Section 12 of the Act and as such not binding on the members of the Workers' Union. This contention is without any basis as the recitals to the tripartite settlement clearly show that the settlement was arrived at during the conciliation proceedings. 29. State Government failed to give due consideration to the direction of the High Court in its judgment dated March 23, 1989. State Government also failed in its duty to bring 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 Cour....
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....ation: Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c): Provided further... Provided also.... 2. 12. Duties of conciliation officers. (1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner. (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement 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....
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....sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer. 5. 9-E Registration of Union- (1) On receipt of an application from a Union for registration under Section 9-D and on payment of the fee prescribed, the Registrar shall, if, after holding such inquiry as he deems fit he comes to the conclusion that the conditions requisite for registration specified in the said section are satisfied and that the Union is not otherwise disqualified for registration, enter the name of the union in the appropriate register in such form as Section 9-C and issue a certificate of registration in such form as may be prescribed : Provided that- (1) where two or more Unions fulfilling the conditions necessary for registration under this Act apply for registration in respect of the same unit of an industry, the Union having the largest membership of employees employed in the unit of the industry shall be registered; and (ii) the Registrar shall not register any Union if he is satisfied that application for its registration is not made bona fide in the interest of the workmen but is made in the interest of ....
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....ies to the industrial dispute; (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause; (c) where a party referred to in Clause (a) or Clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates; (d) where a party referred to in Clause (a) or Clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. 8.2-A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or....