(Prayer: This Petition Is Filed Under Articles 226 and 227 of the Constitution of India Praying to Quash the Impugned Order Dated 25.03.2010 Passed by the Labour Court, Hubli, In Application No. 57/2007 and Etc.)
1. As the question of facts and law involved in these proceedings are the same, they are being disposed of by this common order.
2. The petitioner Management has called into question the order, dated 25.03.2010 passed by the Labour Court, Hubballi, in application Nos.56/2007, 54/2007,59/2007, 58/2007, 55/2007, 60/2007 and 57/2007, allowing the applications filed by the respondent workmen under Section 33C(2) of the Industrial Disputes Act, 1947 ('said Act' for short).
3. The applications were filed stating that certain amounts were due to be paid by the Management to the respondent-workmen under the memorandum of settlement, dated 16.03.2006. The Labour Court has allowed the said applications.
4. Sri N.M. Hansi, the learned counsel for the petitioner Management submits that the cases of the respondent workmen are outside the memorandum of settlement. He reads out Clause No. 1 dealing with the coverage under the said settlement
"This settlement covers all the confirmed workmen on the permanent rolls of the Company as on 01.12.2004 and who continue to be on the roll of the Company as on the date of signing the settlement."
5. He submits that the plain reading of the afore-extracted coverage reveals the prescription of two pre-requirements for coming under the settlement; (a) workmen should be on the permanent rolls of the petitioner as on 01.12.2004; (b) if he is continued to be on the rolls of the petitioner as on the date of signing the settlement. He submits that the memorandum of settlement was signed on 16.03.2006 and the respondent workmen have retired before the said date. He furnishes their respective dates of retirement from the petitioner s services in the tabular form as follows:
|SI. No.||W.P. No.||Date of retirement|
7. He also relies on this Court's decision in the case of the Managing Director and 3 others Vs. Basavaraj Lingappa Hugh and another in Writ Petition No. 62961/2012 and other connected petitions It is held therein that the adjudicatory process which gives rise to an industrial dispute should be left for adjudication under Section 10(1) of the said Act and shall not be decided in the proceedings under Section 33C(2) of the said Act. Under Section 33C(2) proceedings, a party cannot be permitted to embark on a fishing or roving enquiry.
8. Nextly he relies on the decision of the High Court of Judicature, Bombay, in the case of PAL VRS EMPLOYEES WELFARE ASSOCIATION V. PREMIER AUTOMOBILES LTD. and ANR. reported in 2002 (II) CLR 645, wherein it is held that in exercise of its power under Section 33C(2) of the said Act, the Labour Court cannot first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated.
9. He has also relied on the Hon'ble Supreme Court s decision in the case of VIJAYKUMAR and OTHERS VS. WHIRLPOOL OF INDIA LTD. AND OTHERS reported in 2008 (1) SCC (LandS) 5, wherein it is held that the benefit sought to be enforced under Section 33C(2) of the said Act is necessarily a pre-existing benefit or one flowing from a pre-existing right.
10. The learned counsel submits that the settlement indeed itself is not challenged by the workmen, but even then the Labour Court has delivered an uncalled for finding that the words mentioned in the coverage clause "who continue to be on the roll of the Company on the date of signing of this settlement" is not in conformity with the Industrial Disputes Act, 1947. He submits that the validity of an agreement or any clause thereof cannot be gone into by the Labour Court in the proceedings under Section 33C(2) of the said Act.
11. The submissions of the learned counsel have received my thoughtful consideration.
12. Two pre-conditions are to be met for claiming the coverage under the memorandum of settlement; (a) the workman has to be on the rolls of the petitioner as on 01.12.2004. It is not in dispute that on the said date all of them were indeed on the rolls of the petitioner Company; (b) they have to be on the rolls of the petitioner on the material date of signing the agreement-16.03.2006. None of the respondent-workmen were on the rolls of the petitioner-Company as on the said material date.
13. It is not in dispute that the memorandum of settlement is signed on 16.03.2006 and that all the respondent workmen have retired from the petitioner s services before 16.03.2006. Therefore, ex-facie they are not covered under the memorandum of settlement.
14. Nonetheless the Labour Court brings the respondent workmen under the memorandum of settlement saving that the pre- requirement that the workmen should be on the rolls of the petitioner as on the date of singing of the agreement itself is riot n conformity with the Industrial Disputes Act, 1947.
15. I am afraid, this is not permissible under Section 33C(2) of the said Act. On the ground that the coverage clause is unfair, the power cannot be exercised under Section 33C(2) of the said Act. If the respondent workmen want to agitate their entitlement to claim any benefit, their remedy would be to raise the industrial dispute invoking Section 10 of the said Act.
16. The preponderance of judicial views emerging from the decisions relied upon by Sri Hansi is that unless there is adjudication of the claims of the workmen, the question of determining or computing the amounts due to them under Section 33C(2) of the Act would not arise.
17. In the result, I set aside the impugned orders but by reserving the liberty to the respondent workmen to raise the industrial dispute invoking Section 10 of the Industrial Disputes Act, 1947. No order as to costs.