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Binny Limited Vs. Presiding Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 4351/4352/83
Judge
Reported inILR1985KAR59; (1986)ILLJ220Kant
ActsIndustrial Disputes Act, 1947 - Sections 9A, 10, 10(1), 10A(3A), 12(2), 12(3), 18(3), 19, 19(1), 19(2), 25FFA, 25FFF, 31, 33, 33(2) and 33A
AppellantBinny Limited
RespondentPresiding Officer and ors.
Excerpt:
- code of civil procedure, 1908. order 6 rule 17: [a.n. venugopala gowda, j] amendment of written statement amendment seeking the defence on the ground that the previous advocate colluded with the other side rejection of held, amendment should be necessary for the purpose of determining the real question in controversy between the parties. amendment was sought before the commencement of trial of the suit. the proposed amendment is necessary to determine the real questions in controversy between the parties. trial court has failed to exercise the jurisdiction vested in it and the illegality is apparent. order of trial court was set aside and amendment was allowed. - the conciliation proceedings before him failed on 21st november, 1981. in view of the serious consequences that would.....order1. in these two writ petitions, the management of bangalore woollen and cotton mills (binny mill for short) has prayed for a quashing of the order of the industrial tribunal holding that complaints presented by respondent-workmen under s. 33-a of the industrial disputes act, 1947 ('the act' for short) was maintainable and also granting certain interim reliefs. 2. the fact and circumstances of the case, in brief, are as follows :- (i) the management of binny mill, having come to the conclusion that the working of the mill on economically viable basis under the circumstances then prevailing was not possible, gave notice of closure as prescribed under s. 25-ffa of the act on 25th september, 1981. simultaneously the management of the binny mill also gave notice under s. 25-fff dated 23rd.....
Judgment:
ORDER

1. In these two Writ Petitions, the Management of Bangalore Woollen and Cotton Mills (Binny Mill for short) has prayed for a quashing of the order of the Industrial Tribunal holding that complaints presented by respondent-workmen under S. 33-A of the Industrial Disputes Act, 1947 ('the Act' for short) was maintainable and also granting certain interim reliefs.

2. The fact and circumstances of the case, in brief, are as follows :-

(i) The management of Binny Mill, having come to the conclusion that the working of the mill on economically viable basis under the circumstances then prevailing was not possible, gave notice of closure as prescribed under S. 25-FFA of the Act on 25th September, 1981. Simultaneously the Management of the Binny Mill also gave notice under S. 25-FFF dated 23rd October, 1981 and 24th October, 1981 to each of the workman, of its intention to terminate his services consequent on the closure of the factory, with effect from 25th November, 1981.

(ii) Immediately after the issue of the aforesaid notices, a dispute was raised by the Binny Mills Labour Association - a trade union of the employees of the Mill, before the Deputy Labour Commissioner and Conciliation Officer as to the justification for the decision of the management to close the industry. The conciliation proceedings before him failed on 21st November, 1981. In view of the serious consequences that would ensue as a result of the closure of the industry including the loss of employment to a large number of workers, who were as may as 6000, the Commissioner of Labour took up further conciliation. Before him a settlement was reached on 23rd November, 1981. This settlement was signed by D. Venkatesh and Kumar, President and Secretary respectively of the Association, in terms of S. 12(3) of the Act and report was also sent to the State Government as prescribed in that provision. The sum and substance of the settlement was modification in the matter of workload, shift timings and rationalisation of labour forces and allied matters. One of the clauses in that settlement, to which serious exception was taken by a few workmen, was Clause 10. It reads :

'(10). Workmen of the Mills shall give individual letter of the Management confirming the acceptance of the terms of settlement dated 23 November, 1981 in the proforma to be supplied by the management in this behalf before the closure of business hours on 24th November, 1981 and those workers on leave or on absence on 24th November, 1981 shall give the said letters before being admitted to work.'

In terms of the settlement, it appears substantial number of workmen numbering as many as 4000, signed the undertaking as required under Clause 10 immediately and continued in service. Later more number of workmen also did so. Some of the workmen, who are respondents in these Petitions, who were dissatisfied with the settlement filed Writ Petitions, W.P. Nos. 30512 to 30517 of 1981, before this Court contending that the statement was illegal and void. The Writ Petitions were dismissed by the order of Bopanna, J. dated 2nd June, 1983. Some of the findings recorded by the learned Judge were :-

(a) The allegation that the settlement amounted to unfair labour practice was not proved.

(b) The conciliation officer had discharged his obligation under S. 12(2) of the Act and that the settlement was in the course of conciliation.

(c) The settlement averted the closure of the mill and benefited substantial number of workmen.

The learned Judge, however, reserved liberty to the Petitioners therein, to raise an industrial dispute, as to the validity of the settlement.

(iii) The correctness of the order of the Single Judge in the Writ Petitions, was challenged in Writ Appeal No. 2430 of 1982. By order dated 15th June, 1983, the Division Bench confirmed the order and dismissed the appeals.

(iv) After the disposal of their Writ appeal, the respondent-workmen filed two complaints under S. 33-A of the Act before the Industrial Tribunal, Bangalore. The grounds on which the said complaints were presented were as follows : There was an industrial dispute (A.I.D. No. 42 of 1982) on the question of the bonus between the workmen of the Binny Mill and the management of the Binny Mill, pending before the Tribunal. Therefore, during the pendency of the said dispute, no alteration of condition of service could have been made by the management. The conditions of service of workmen were governed by two earlier settlements dated 27th May, 1978 and 1st March, 1980. Unless those settlements were terminated in terms of S. 19 of the Act, there could be no fresh settlement. The settlement dated 23rd November, 1981 in general and in particular Clause 10 of the settlement varied the conditions of service which were applicable to them in terms of earlier settlement and therefore, the management should be held to have violated the provisions of S. 33(2) of the Act and there should be an award in their favour for continuity of service and back wages in terms of the earlier settlements. Pending disposal of the complaints interim relief was sought for, for payment of salary.

(iv) Before the Tribunal, the management of Binny Mill raised the following contentions :

(a) There was no alteration of conditions of service at all in respect of any material condition of service such as salary, allowance, leave etc. much less to their disadvantage. Assuming that there was alternation of some of the conditions of service to the disadvantage of the workmen the complaints were not maintainable as it was brought about through a settlement arrived at in the course of conciliation proceedings under S. 12(3) of the Act, which was binding on all the workmen including the respondent-workmen. Further the complaints presented by them were not maintainable in view of the orders of this Court in W.P. Nos. 30512 to 30517 of 1981 and in W.A. No. 2430 of 1982.

(v) The Industrial Tribunal tried the aforesaid contention as a preliminary issue in the impugned order and answered that the complaints were maintainable and in the same order granted interim relief directing 50 per cent. of the salary to the complaints. The operative portion of the order reads :

'All these complainants shall give the undertaking as shown in Clause 10 of the impugned settlement stating that it is without prejudice to their rights that may be finally adjudicated in the present proceedings and they shall file such undertakings before this Tribunal within 5 days. The management shall then receive the undertakings from this Tribunal and shall re-instate the in their respective posts within two days and only failure to do so, the management shall pay 50 per cent. of their total wages. i.e., basic pay wages and other allowances etc., as interim relief with effect from 1st February, 1983, and the same shall be adjustable in the final order.' Aggrieved by the said order, the management of Binny Mill has presented these two Petitions.

3. The two questions which arise for consideration in these Writ Petitions are :

(i) Whether there has been alteration of conditions of service of the workmen pursuant to settlement dated 23rd November, 1981 ?

(ii) If alteration of condition of service is brought about by settlement dated 23rd November, 1981, whether it contravened S. 33(2) of the Act and therefore, the complaints were maintainable

4. Sri Narayanaswamy, learned Counsel for the Petitioners, Sri S. V. Shastri, learned Counsel for the respondent-workmen and Sri Sachindranath, representative of respondent-workmen addressed arguments in support of the rival contentions on the 2nd question. In my view, the matter lies within a narrow compass in view of the language of S. 33 of the Act and the orders of this Court in the earlier Petitions.

5. I shall therefore consider the second question only, and for that purpose I proceed on the basis that as a result of the settlement dated 23rd November, 1981, there had been alteration of conditions of service of the respondent-workmen.

6. Section 33(2) of the Act reads :

'33(2). During the pendency of any such proceedings in respect of an Industrial Dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman :-

(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) for any is misconduct not connected with the dispute, discharge or punishment, whether by dismissal or otherwise, of that workman.

Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.'

According to the above provision, when an industrial dispute is pending between a Management of an industrial establishment and its workmen, the conditions of service of workmen even in respect of matters unconnected with the dispute could be altered by the management only under two circumstances :

(i) If the conditions of service sought to be altered are those governed by the standing orders of the concerned industry, alteration could be made if the standing orders provides for such alteration.

(ii) If the conditions of service sought to be altered are not those covered by the standing orders, the conditions of service could be altered only under a contract.

7. It is common ground that the conditions of service which are the subject matter of settlement dated 23rd November, 1981 are not covered by standing orders. Therefore, the only method by which the conditions of service could be altered was by contract. A settlement entered into by the management and the workmen in the course of conciliation in terms of S. 12(3) of the Act is certainly a contract and therefore if alteration of conditions of service was brought about by such settlement, it is expressly permitted by S. 33(2). Such settlement is binding on all the workmen of the industry in view of S. 18(3) of the Act, S. 18(3) of the Act reads :

'18(3) : A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issue under Sub-s. (3A) of S. 10A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on :-

(a) all parties of 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 my be, records the opinion that they were summoned without proper cause :

(c) Where a party referred to in Clause (a) of Clause (b) is an employer, his heirs, successors or assignees 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 person who are employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date on the dispute and all persons who subsequently become employed in that establishment or part.'

Hence there can be no doubt, if in the present cases the alteration of conditions of service was brought about by a settlement under S. 12(3) of the Act, there was no violation of S. 33 and no complaint under S. 33-A was maintainable.

8. Therefore, the sole question that arises for consideration is whether the settlement dated 23rd November, 1981 was the one arrived at under S. 12(3) of the Act. In fact there is no dispute and there can be no dispute as to that fact as it stands established by the proceedings of the Conciliation Officer and the settlement. The conciliation proceedings read :

'PROCEEDINGS dated 23rd November, 1981.

It was represented by both parties that they had been unable to come to an understanding on the dispute before the D.L.C./BLR and requested me to take it up further. Accordingly, the matter was taken up.

After considerable discussions; the parties were persuaded to come to an understanding and a settlement was arrived at.

The contentions of the letter written by Sri Gavisiddappa, President of BMLA (INTUC) were taken note of and brought to the notice of the workmen's representatives. The judgment and order of the IX Additional City Civil Court BLR in O.S. No. 10508/1980 (Order No. 1A No. 1) were perused. The contention raised by the Sri Gavisiddappa that the representatives of the workmen led by Sri D. Venkatesh were not entitled to sign a settlement in view of the above order has been carefully considered. It is seen that the order of injunction prevents Sri D. Venkatesh and others from signing a settlement, but has not prevented them from functioning as office bearers. However, the representatives of workmen have produced the orders of the High Court of Karnataka in MFA No. 2082/81 dated 12th November, 1981 by which the order of the IX Addl. City Civil Court referred to, have been stayed. It is thus clear that Sri A. Kumar and others continue to be office bearers of the BMLA and there is now no bar to their signing the settlement on behalf of their members.

The workmen's representatives have also produced a copy of the resolution of the general body meeting, dated 22nd November, 1981 authorising the office bearers to sign a settlement. They have also shown me the resolution of the executive committee giving them a similar authorisation.

As regards the Binny Mills Employees Union, the Management stated that this Union does not represent the majority of workmen and is not a union recognised by the management and they would not agree to sign a settlement with this Union.

I am convinced that this Union does not represent the majority of the workmen as according to the check off agreement the BMLA has membership of more than 4,000 out of about 6,000 workmen.

The demands now settled and the agreement arrived at does not adversely affect the service conditions of the staff. The management stated that separate proposals in regard to the staff are under discussion. Moreover, the present agreement confers a benefit on all the workmen in as much as closure is averted.

In the result, I am convinced that the present settlement is in the best interest of the majority of workmen and is fair and reasonable and approve it.'

Relevant part of the contents of the settlement reads :

'Whereas the parties to the dispute after prolonged discussions and negotiations with the held and assistance of the Commissioner of Labour have arrived at the following terms of settlement this day on the 23rd November, 1981.

xx xx xx xx Date this the Twenty three day of November 1981 at Bangalore.

Sd/-

A. Kumar,

President

Sd/-

B. K. P. Rao,

Director

For Management.

'Before me'

Sd/-

D. Venkatesh

Secretary

For Workmen.

Sd/-

Commissioner of Labour and State

Concilation Officer.'

The two documents establish that the settlement was the one arrived at in the course of conciliation. In fact this was also the finding recorded by Bopanna, J, in the order made in the two Writ Petitions.

9. Learned Counsel for the workmen, however, strenously contended that the settlement in order to be the one contemplated by S. 33(2) must be a lawful one, but the settlement dated 23rd November, 1981 was unlawful for two reasons, namely :-

(i) There was an earlier settlement dated 1st March, 1980 which governed the conditions of service of workmen and unless the settlement was terminated by issue of a proper notice, either by the workmen or by the management, no fresh settlement could be entered into even by consent of parties in view of the mandatory provisions of S. 19 of the Act.

(ii) The two persons, who signed the settlement on behalf of the workmen, were not competent to sign the settlement.

10. The relevant provisions which govern the settlement are S. 19(1) and (2) of the Act. They read :

'19(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 agree upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute.

'19(2) : Such settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, of the period of six months from the date on which the memorandum or 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 settlement is given by one of the parties to the other party or parties to the settlement.'

According to sub-s. (2), a settlement, after coming into force in terms of sub-s. (1), would be in force, during the period agreed upon or in the absence of such period in the settlement, for a period of six months and even thereafter such settlement continues to bind the parties until it is terminated. This position is beyond controversy. (See L.I.C. v. D. J. Bahadur [1981-I L.L.J. 1]. However, after the expiry of that period, the parties to the settlement have the liberty to terminate the settlement. But they could not so only after given two months notice and the settlement cases to be binding only after the expiry of two months from the date of notice on the other party.

On the above premise, it is contended on behalf of the respondent-workmen that as there had been no notice of termination by either of the party the said settlement continued to be in force and so long as that settlement was in force, there was in scope for entering into another settlement, and, if entered into, it would be invalid being in plain contravention of S. 19(2) of the Act.

11. The contention is based on the wrong understanding of the scope S. 19(2) of the Act. The correct import of S. 19(2) may be summarised thus :

(i) In the case of a settlement in which no period is mentioned, the settlement would be in force an binding on both the parties for a period of six months. During this period, a party to the settlement has no right to terminate the settlement. In other words, no notice of termination can be given by any of the parties terminating the settlement on any date earlier to six months. Even if it is given, is is invalid.

(ii) The position is the same in respect of settlement in which a period of operation is mentioned. Until the expiry of that period, one of the parties to the agreement has no right to repudiate or terminate the agreement and even if it is done by a party to the settlement, the settlement does not come to an end before the expiry of the period agreed upon. (See The Workmen of Hindustan Lever v. The Management of Hindustan Lever [1984-I L.L.J. 388].

(iii) After the expiry of the period agreed upon in respect of an agreement or in the absence of such specification in the agreement after the expiry of six months, any of the parties to the agreement can, by issue of two months' notice, terminate the agreement with effect from a date on or after the agreed or statutory period comes to an end and such a notice becomes effective after the expiry of two months from the date of service of notice.

This is the effect and purport of S. 19(2) of the Act. There is nothing in S. 19 which prevents both the parties, if they so desire, to arrive at a new settlement superseding an earlier settlement either within the period of six months where no period is mentioned or within the period for which it was agreed to be in force.

12. To put it in nutshell, according to S. 19 a bilateral settlement cannot be terminated by unilateral act of a party before the expiry of six months or the period specified in the settlement, though it could be done thereafter by issue of two months' notice; but the Section does not prohibit a fresh settlement within six months or the period agreed upon by consent of both the parties to the earlier settlement. Hence I find no substance in the contention of the workmen that unless the previous settlements were terminated, the entering of the settlement dated 23rd November, 1981 by consent of both the parties contravened S. 19(2) of the Act.

13. The workmen also relied on S. 9-A of the Act and contended that without giving notice of charge as prescribed under that Section, the management could not alter the condition of service to the prejudice of the workmen and as in the present case admittedly there was no such notice, the alternation was illegal and in view of this provision also, it should be held that the management contravened S. 33 of the Act. Relevant part of S. 9-A reads :

'9-A. No employer, who process to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change -

(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or

(b) within twenty-one days of giving such notice.

Provided that no notice shall be required for effecting any such change -

(a) where the change is effected pursuance of any settlement award or decision of the Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950;'

The contention of the workmen is untenable. According to the proviso (a) to the Section, whenever change is effected pursuance to a settlement, the requirement of notice is inapplicable. Therefore, to the present case, the requirement prescribed under main part of S. 9-A is inapplicable as the case falls under the proviso.

14. Another submission made on behalf of the workmen was that there was no clause in the settlement dated 23rd November, 1981 to the effect that earlier settlements stood superseded and therefore it must be held that the previous settlements also continued to be in force and consequently the workmen, if they so chose were entitled to continue in service without signing an undertaking as required under Clause 10 of the settlement dated 23rd November, 1981.

15. I see no force in the above submission either. It is true that there is no specific Clause in the settlement dated 23rd November, 1981 to the effect that the corresponding Clause in the earlier settlements stand superseded. But it makes no difference for, when a latter valid contract between the parties covers matters which were covered by an earlier contract, by necessary implication, the earlier contract stands superseded and latter prevails and binds the parties. Section 62 of the Contract Act expressly stated so.

16. The only other question which remains for consideration is whether the settlement was signed by persons who were not competent to sign the settlement and therefore, invalid and consequently it should be held that there has been violation of S. 33 of the Act.

17. The respondent-workmen relied on the judgment of the Supreme Court in the case of Brooke Bond India v. Their Workmen [1981-II L.L.J. 184] and submitted that unless the two persons who had signed the agreement were authorised by the resolution of the general body of workmen or of the executive committee, they had no authority to sign the settlement. They submitted that Rule 62 of the Industrial Disputes Central Rules was similar to Rule 59 of the Industrial Disputes Karnataka Rules and therefore the ratio of that decision was applicable to this case also.

18. The contents of the Conciliation proceedings provide complete answer to the objection raised on behalf of the workmen. The agreement was signed by the President and Secretary of the Association and they were also authorised to do so not only by a resolution of the executive committee but also by a resolution of the general body. Relying on the decision in Bata Shoe Co. (Pvt.) Ltd. v. Ganguly (D.N.) and others [1961-I L.L.J. 303], it was argued for the workmen that as a dispute had been raised as to the authority of D. Venkatesh and Kumar to function as President and Secretary respectively, it was obligatory on the part of the Conciliation Officer to decide that dispute and without doing so he could not have allowed the said two persons to sign the settlement representing the workmen.

19. I see no force in the above submission. As pointed out by Bopanna, J, in the order in the Writ Petition, a suit was filed on behalf of some of the respondent-workmen and they had sought a temporary injunction against Venkatesh and Kumar not to sign the settlement, and the said injunction was granted. Against that order D. Venkatesh and another preferred a Miscellaneous First Appeal before this Court and this Court in MFA No. 2072/1981 on hearing both the parties, by its order dated 17th November, 1981 stayed the order of injunction granted by the Civil Court and thereafter D. Venkatesh and Kumar were entitled to sign the settlement which they did not 23rd November, 1981. As can be see from the proceedings of the Conciliation Officer it is only after considering these facts he took the view that D. Venkatesh and Kumar were entitled to sign the settlement on behalf of the workmen and allowed them to sign the settlement. Thus the Conciliation Officer did apply his mind and came to a conclusion which was right as held by Bopanna, J. with which I respectfully agree.

20. In fact the were no other office bearers other that D. Venkatesh and Kumar who could sign the settlement on behalf of the association. Hence, the contention of the workmen that the settlement was illegal on that count is untenable.

21. Learned Counsel for the workmen however maintained that even on the basis that there has been a decision of the Conciliation Officer as to the authority of D. Venkatesh and Kumar to sign the settlement workers were entitled to prove in 33-A proceedings that D. Venkatesh and Kumar had no authority to sign the settlement and on the basis establish that the settlement was in valid and consequently there has been violation of S. 33.

22. It appears to me that on the facts and circumstances of this case the respondent-workmen were not entitled to lodge a complaint under S. 33-A of the Act for the following reasons :

(i) The respondent-workmen's plea that D. Venkatesh and Kumar should be prevented from signing the settlement was rejected by this Court, in M.F.A. 2072 of 1981.

(ii) The Conciliation Officer examined the matter in the light or the order of the order of this Court and was convinced that the said two persons had lawful authority to sign the settlement.

(iii) The settlement was entered into in the course of conciliation and the matter was reported to the Government.

(iv) Large majority of workmen i.e., leaving a few who are prosecuting these Petitions, have accepted the settlement and joined service.

23. In the face of these facts, I find it difficult to agree the there was any basis at all for filing a complaint under S. 33-A of the Act against the Management. In this behalf, it is pertinent to point out that violation of S. 33 is also an offence punishable under S. 31 of the Act. It would be travesty of law to charge the Management of having committed an offence, for having entered into a settlement yielding to the persuasion of the Conciliation Officer with persons, who were allowed to continue to function as office bearers of the Association and sign the settlement by an order made by this Court vacating the interim injection granted in the suit, even if in the suit it were to be held subsequently that they were not validity elected or continuing in office, and more so when they had been authorised by the General Body. Obviously for this reason, Bopanna, J., stated as follows :

'It should also be noted that there is no rival union in this particular industry. There is only one Association of workmen known as the Binny Mills Labour Association. But on the material placed before me, it is easy to discern that there are two groups in the Association which are sharply dived, owing allegiance to different union leaders. The group represented by Respondents 6 and 7 who signed the settlement on behalf of the Association claims to have majority of the workmen within its fold, whereas the group represented by the Petitioners claims that it has the majority of the workmen in its fold. But this plea of the Petitioners has not been established and is evident from the contradictory statements in the Writ Petition as also in the intervening application. Whereas in the petition they stated that stated that Respondent - 5 Association has a membership of 300-350 workmen, in the intervening application filed by the other workmen they have stated that about 3400 workmen are members of the 5th Respondent Association. That apart, this is not a matter for investigation in these proceedings in view of the Civil Suit O.S. No. 10508 of 1980 pending on the file of the City Civil Judge, Bangalore. In that suit, some of the workmen who said with the Petitioners in these proceedings have sought for a declaration that any settlement or action or negotiation that may be made by Respondents 6 and 7 who are President and Secretary respectively, after 21st January, 1980 with the Management are null and void and for a further declaration that their continuance as office-bearers after that date is illegal. The interim order made by the Trial Court in favour of these workmen was vacated by this Court in M.F.A. No. 2072 of 1981. Thus there was no legal bar for Respondents 6 and 7 to continue the negotiations with the management as also to sign the settlement. The impugned settlement was executed by Respondent 6 and 7 on behalf of the Association after this Court stayed the operation of the Trial Court's order in favour of the plaintiffs therein.

xx xx xx xx It is made clear that if any dispute is referred to the Tribunal on the validity of the settlement, the Tribunal shall not be influenced by any observations made therein.'

As pointed out earlier all other contentions raised as to the validity of the settlement was rejected by Bopanna, J. Even though His Lordship declined to examine the issue regarding the right of Venkatesh and Kumar to continue as Office-bearers, in view of the pendency of the suit, he observed that in view of the stay order in M.A.F. No. 2072 of 1981 there was no legal bar for them to sign the settlement. As the dispute was subject matter of Civil Suit and could also be raised in an industrial dispute the Court expressly stated that if any dispute as to validity of settlement was referred to the Tribunal, it shall not be influenced by the views expressed in that order. Therefore, it was open for the respondent-workmen to raise an industrial dispute, but they could not file a complaint under S. 33-A of the Act.

24. It was contended that the liberty reserved in the last paragraph of the order itself enable them to file a complaint under S. 33-A of the Act, as such complaint is required to be disposed of as a reference.

25. I am unable to agree, Liberty reserved in the aforesaid order was only for raising an industrial dispute under S. 10 of the Act which means that it should be raised by substantial number of workmen and not for filing an individual complaint which alone could be file under S. 33-A of the Act. It is true that such individual complaint under S. 33-A of the Act is required to be tried as a reference, but the fact remains, it would not be an industrial dispute referred under S. 10(1) of the Act.

26. In Writ Appeal also the Division Bench reiterated that the respondent-workmen could raise an industrial dispute as to the validity of settlement and in the meanwhile execute an undertaking in terms of Clause 10 of the settlement and continue in service. The relevant part of the order reads :

'After hearing the learned Counsel for the parties, we are satisfied that the learned Single Judge was right in declining to interfere under Art. 226 of the Constitution of India having regard to the facts and circumstances of the Case. In that view of the matter, we do not consider if necessary to go into the merits or the contentions urged by Sri K. Subba Rao, learned Counsel for the appellants. The learned Single Judge has rightly observed that it is open to the parties to take steps for raising an industrial dispute in which event they would be in a position to against their grievances in accordance with the settlement. We would like a record the undertaking given by the learned Counsel for the Management Respondent No. 3 that so for as these six appellants are concerned, if they have not already reported for duty and if they now choose to report for duty within a month from this date agreeing to abide by the terms of the settlement without prejudice to their rights to challenge the same in appropriate proceedings, the Management would take them into service as it has done in respect of other so far. It is obvious that on their reporting for duty, the appellants would not be entitled to any back wages and in regard to this aspect of the matter also it is open to them to raise an appropriate industrial dispute as and when occasion arises to do so. With these observations, these appeals stand rejected.'

But the respondent-workmen did not choose to raise an industrial dispute or join duty taking the benefit of the order in Writ Appeal.

27. In the circumstances, I hold that there was no basis for the complaints and they were not maintainable.

28. Learned Counsel for the Petitioner also submitted that though the complained were said to have been presented by 106 persons, actually many of them had accepted the settlement and were continuing in service and a few of them had left the service by taking compensation in full settlement and therefore the complaints were not maintainable. In this behalf he invited my attention to paragraph 10.7 and 10.8 of the Petition. They read -

'10.7 The Tribunal ought to have rejected a Complaint No. 17 on the ground that even the names of complaints were not given in the sense that in the cause-title, it has been mentioned Ramaiah etc., and others. The other names of the complaints have not been mentioned in complaint.

10.8 As regard complaint 18/82, the Petitioner had filed a detailed counter-statement setting out that about 106 employees were mentioned as complaints in the cause title, whereas only 100 appeared to have signed the same. This apart, about 9 employees appeared to have signed twice, Prime facie, it appeared that the complaint was a got up document. Further, it was also pointed out that 24 employees who had left the services of the company have also been mentioned as complainants, besides 32 who are working inside the Mills are shown as complainants, 10(Ten) complainants who are under suspension pending enquiry were being paid subsistence allowance; also are cited as complainants. Three employees had regained from the services of the company and 5 complainants who had already signed the undertaking were cited as complainants. It was also submitted that some of the workmen had filed a memo, complaining that they had both authorised any one to file a complaint on their behalf. All these aspects have been completely ignored by the Tribunal.'

Correctness of most of the above facts were not disputed by the respondent-workmen. Obviously for that reason, respondent-workmen have not chosen to raise an industrial dispute which requires the support of substantial number of workmen. Whatever that may be in view on my conclusion that there was no basis for the complaints, I consider it unnecessary to deal with the above contention.

29. Relying on the judgment of the Supreme Court in D. P. Maheswari v. Delhi Administration [1983-II L.L.J. 425], it was contended for the workmen that these Writ Petitions should not be entertained as in the impugned order the 'Tribunal had only decided the preliminary issue. I am unable to agree. In the aforesaid judgment, the Supreme Court has expressed against the entertaining of a Writ Petition on every order on preliminary issue and issuing orders of stay which would result in procrastination and delay in the final resolution of the main dispute. Therefore, it is clear that if in a given case, the decision on preliminary issue given in favour of the party, who has come to the High Court in a Petition under Art. 226 of the Constitution is not likely to end the main dispute and would unnecessarily prolong the dispute pending before the Tribunal, it is appropriate for this Court not to entertain the Writ Petitions. But in a case where the preliminary issue decided by the Labour Court is such that any decision in favour of the party approaching the High Court in a Petition under Art. 226 would end the dispute itself finally or would curtail unnecessary proceedings before the Tribunal, the entertaining of the Writ Petition would be expedient in the interest of speedy final decision of the dispute itself. In fact the present case is one such in which the decision in favour of the Petitioner would bring to an end the proceedings before the Tribunal. Hence, I reject the contention.

30. In the result, I make the following order -

(i) Rule made absolute.

(ii) The impugned order of the Tribunal dated 2nd February, 1983 (Annexure-G) is quashed.

(iii) No costs.


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