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Natarajan (R.) and ors. Vs. Regional Assistant Commissioner of Labour and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1966)ILLJ310AP
AppellantNatarajan (R.) and ors.
RespondentRegional Assistant Commissioner of Labour and ors.
Excerpt:
- - 3. the settlement dated 1 july 1961, as well as the settlement dated 10 december 1962, were arrived at and recorded in the presence of the commissioner of labour under sections 2(p) and 18(1) of the industrial disputes act, 1947. it is clear from clause (3) of the supplementary settlement dated 10 december 1962, that the management agreed that they would not resort to retrenchment or lay-off during the truce period, which, according to clause (5) of the settlement dated 1 july 1961, is three years from that date. the learned judge also held that it is not possible to decide on the material placed before him that there was collusion between the president of the union and the management, or that the retrenchment was brought about/mala fide as it is not proved that the action of the.....chandrasekhara sastri, j.1. this is an appeal against the judgment of our learned brother, gopal rao ekbote, j., dismissing the writ petition no. 1501 of 1963. there were as many as 41 petitioners in the writ petition. they prayed for the issue of a writ in the nature of a writ of mandamus or any other appropriate writ, order or direction restraining the respondents from giving effect to the settlement dated 20 december 1963 entered into between the praga tools corporation, ltd., and the praga tools employees' union.2. the petitioners were the employees of the praga tools corporation, ltd. (hereinafter called the company), which is respondent 2 in the writ petition, represented by its managing director, respondent 1 is the regional assistant commssioner of labour, hyderabad, and.....
Judgment:

Chandrasekhara Sastri, J.

1. This is an appeal against the judgment of our learned brother, Gopal Rao Ekbote, J., dismissing the Writ Petition No. 1501 of 1963. There were as many as 41 petitioners in the writ petition. They prayed for the issue of a writ in the nature of a writ of mandamus or any other appropriate writ, order or direction restraining the respondents from giving effect to the settlement dated 20 December 1963 entered into between the Praga Tools Corporation, Ltd., and the Praga Tools Employees' Union.

2. The petitioners were the employees of the Praga Tools Corporation, Ltd. (hereinafter called the company), which is respondent 2 in the writ petition, represented by its managing director, Respondent 1 is the Regional Assistant Commssioner of Labour, Hyderabad, and respondent 3 is the Praga Tools Employees' Union, represented by its president, Sri N. Satyanarayana Reddi. The company has two rival workmen's unions. The one known as Praga Tools Employees' Union (hereinafter called the union) is a union recognized by the company and commands a majority amongst the workmen at the time of the filing of the writ petition. The other, which was constituted on 4 May 1961, is known as Praga Tools Corporation Mazdoor Sabha (hereinafter called the Babha). The petitioners were for some time members of the union, but subsequently became the members of the sabha and continued to be so. On account of some disputes between the company and the workmen, the union on behalf of the workmen entered into an agreement with the company on 1 July 1961. Clause (5) of that settlement provided:

The workers hereby agree to observe an industrial truce for a period of three years from the date of this settlement during which period the union or the workers shall not resort to any strikes, stoppage of work or go-slow practices.

There was again a supplementary settlement on 10 December 1962. Among other things, C1. (3) of the said settlement provided:

The management declare that they will not resort to retrenchment or lay-off during the truce period for purposes of solving surplus workers problem. However, this assurance is based on continued co-operation from the workers in retraining of personnel to achieve a balanced work force and their willingness to carry out alternate tasks assigned to them even if it is in a slightly lower cadre without loss of emoluments.

3. The settlement dated 1 July 1961, as well as the settlement dated 10 December 1962, were arrived at and recorded in the presence of the Commissioner of Labour under Sections 2(p) and 18(1) of the Industrial Disputes Act, 1947. It is clear from Clause (3) of the supplementary settlement dated 10 December 1962, that the management agreed that they would not resort to retrenchment or lay-off during the truce period, which, according to Clause (5) of the settlement dated 1 July 1961, is three years from that date. Thus, the management agreed not to resort to retrenchment till 1 July 1964. The two settlements dated 1 July 1961 and 10 December 1962 were therefore in force till 1 July 1964. While so, the management again entered into an agreement with the union on 20 December 1963 and it was signed by the conciliation officer prescribed under the Industrial Disputes Act. This settlement is under Section 12(3) of the Industrial Disputes Act, 1947. It is, necessary to refer to the following extracts from the settlement:

Memorandum of settlement under Section 12(3) of the Industrial Disputes Act, 1947

Names of the parties-

(1) The Praga Tools Corporation, Ltd., represented by Sri R.C. Raizada, Administrative Officer.

(2) Workers of the Praga Tools Corporation, Ltd., represented by Sri P. Parthasarathi, general secretary of the Praga Tools Employees' Union.

* * *Whereas there are, as of today, several disputes between the management and the union and some of them are the subject-matter of proceedings in conciliation under Section 12 of the Industrial Disputes Act and certain others are pending, arbitration/adjudication;

* * *The parties hereby agree as follows:

1. Any provisions in any of the agreements entered into by the parties prior to this date, in so far as they are repugnant to or are inconsistent with any of the provisions contained in this agreement, stand automatically repealed to that extent, and the said agreements shall stand modified accordingly.

The inconsistency (or repugnance) referred to above is the inconsistency (or repugnance) if any, between this agreement and the agreements entered into by the union and the management on 1 July 1961 and 10 December 1962. Copies of the said agreements are attached herewith for ready reference (annexures I and II).

* * *6. Both the parties agree that there is an immediate unavoidable need for reducing the overhead expenditure substantially for effecting much-needed economy. Therefore, notwithstanding anything said to the contrary in Para, (iii) of the agreement, dated 10 December 1962, both the parties have prepared a list of the categories and persons who would be retrenched after careful consideration, and is attached to this agreement as annexure VI. The 10 December 1962 agreement therefore is modified to this extent only, so as to allow this retrenchment to take place immediately in accordance with law. However, the management, in order that the consequences of the proposed retrenchment to the workers may be somewhat mitigated, have evolved a scheme of voluntary retirement with terminal benefits superior to those that would be payable according to the provisions of the Industrial Disputes Act (annexure VII). This scheme of voluntary retirement would be available to the workers for a period of ten days only from the date of this agreement and its period of operation shall not be extended under any circumstances.

N.B.-In order to further help these retrenched persons, it is agreed between the parties that an attempt shall be made to rehabilitate the retrenched persons by helping them to obtain some alternative employment. For this purpose steps have been taken by the company by contacting various public sector and other industries. In particular, a scheme has been worked out in co-operation with the Heavy Engineering Corporation, Ranchi, for absorption of these personnel by it as far as possible and a selection team from Ranchi is expected to arrive in Hyderabad shortly. This, however, does not mean that the management will retain the retrenched workers or provide alternative employments.

This is the settlement the validity of which was questioned in the writ petition. This settlement thus modified the settlement dated 10 December 1962 by allowing the retrenchment to take place immediately, contrary to what was agreed to in Clause (3) of that settlement. The petitioners in the writ petition are included in the list of persons attached to the settlement dated 20 December 1963 and who are retrenched with effect from 1 January 1964. In all 92 persons were retrenched. The following points were urged on behalf of the petitioners before Gopal Rao Ekbote, J., when the writ petition was argued:

(1) Most of the petitioners left the union and joined the sabha as they did not agree with the policy and leadership of the union and, therefore, N. Satyanarayana Reddi, the president of the union, had a grudge against them. Hence, in collusion with the management, he entered into another settlement under Section 12(3) of the Act agreeing to the retrenchment of 92 workmen of the company in direct conflict and in violation of the earlier settlement which is binding both on the company and the workers.

(2) There can be no industrial dispute within the meaning of Section 2(k) as long as the settlements arrived at on 1 July 1961 and 10 December 1962 were in force, they not having been terminated under Section 19, (2) of the Act. Therefore, there cannot be a valid conciliation under Section 12, But respondents 2 and 3 approached respondent 1, who is the conciliator, who, without considering the matter on the merits, put his signature to the settlement dated 20 December 1963 without realizing that there is already a binding settlement between the parties,

(3) The settlement dated 20 December 1963 providing for the retrenchment of 92 workers is illegal and invalid as it has no authority of law and as it cannot supersede the earlier settlement.

(4) The retrenchment is void as it is in contravention of Section 25F of the Act, as no notice of the settlement had been given to the appropriate Government and as no notice of termination has been given.

4. It was also argued before our learned brother, Gopal Rao Ekbote, J., that the company is under the management of the Union Government since 1959 and that, therefore, the appropriate Government in regard to the disputes between the company and the workers is not the State Government of Andhra Pradesh, but the Government of India and that it followed that the settlement dated 20 December 1963 signed by the conciliation officer of the State Government is not valid in law and that no retrenchment can take effect pursuant to that agreement. The learned Judge, after referring to the relevant sections in the Industrial Disputes Act, 1947, and the constitution and working of the Praga Toola Corporation, Ltd., and the relevant decisions bearing on the question, held that the company does not come within the ambit of the term ' industry' run by or under the authority of the Central Government although the Central Government may have some regulatory or controlling powers or may have 56 per cent of the shares with power to nominate the majority of the members of the board or directors of the company, which is registered under the Companies Act. On this ground, this contention was rejected. The learned Judge also held that it is not possible to decide on the material placed before him that there was collusion between the president of the union and the management, or that the retrenchment was brought about/mala fide as it is not proved that the action of the management is vitiated by bad faith, or discrimination or based on victimization. It was pointed out that it was open to the petitioners and the other members of the sabha to place their case before the conciliation officer or approach the Government asking for a reference of all disputes to the tribunal. As regards the question whether after the two earlier settlements of 1 July 1961 and 10 December 1962, there could be an industrial dispute within the meaning of the Act so long as the two earlier settlements were in force, the learned Judge referred to a letter dated 5 April 1963 written by the president of the union requesting that the question of retrenchment also may be settled and also to the fact that the management took advantage of the letter and that the conciliation officer did not object to it. Thus, in the view of the learned Judge, the whole matter seems to have been thus brought on the pending list by the consent of the parties and that the conciliation officer seems to have been satisfied that there is an industrial dispute and then lent his services for bringing about a conciliation in regard to the question of retrenchment of the workers also. As this final settlement was one arrived at in the course of the conciliation proceedings under the Act, it is binding on all the workers though they were at the time not members of the union, but were only members of the sabha, who are in a minority. In the learned Judge's view, though the two earlier settlements dated 1 July 1961 and 10 December 1962 were in force at the time of the third settlement, still, as the union and the management agreed that the question of retrenchment also may be made part of the proceedings, the conciliation officer took up the question, that the settlement dated 20 December 1963 which was implemented by the conciliation officer, is binding also on all the workers whether or not they were members of the union at the time. In that view, the writ petition was dismissed. The learned Judge also observed that, in the view he had taken, it was not necessary in his judgment to deal with the preliminary objection raised by the respondents that no writ of mandamus lies against an incorporated company. Against that judgment, only 28 out of the 41 writ petitioners filed the above appeal under Clause (15) of the Letters Patent.

5. The first question argued by the learned Counsel for the appellants before us is that, so long as the settlements dated 1 July 1961 and 10 December 1962 were in force, there could not arise any dispute about the retrenchment of workers and that such a dispute can be raised by the company only after those settlements were put an end to in accordance with the provisions of the Industrial Disputes Act. Thus, when there could not be any industrial dispute under law, there could not be conciliation of that dispute. The settlement dated 20 December 1963 arrived at in the course of the conciliation proceedings and reported by the conciliation officer to the Government, therefore, illegal and not binding on any of the parties. In order to decide this question, it is necessary to refer to some of the provisions of the Industrial Disputes Act, 1947. Section 2(k) defines ' industrial dispute ' as any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. Section 2(p) as amended by Act 36 of 1956 defines ' settlement' as follows:

'Settlement' means a settlement arrived at in the course of conciliation proceeding and includes 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 may be prescribed and a copy thereof has been sent to the appropriate Government and the conciliation officer;

Prior to the amendment introduced by Act 36 of 1956, this definition did not include 'agreements' arrived at otherwise than in the course of conciliation proceedings. Section 18 specifies the persons on whom settlements and awards are binding. Sub-section (1) of that section states that a settlement arrived at by agreement between the employer and workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. It has to be borne in mind, in the present case, that the settlements dated 1 July 1961 and 10 December 1962 were arrived at by agreement between the company and the workmen otherwise than in the course of conciliation proceedings and, therefore, they are binding only on the persona, who were then the members of the union at the time of the settlements. They could not bind any workman, who was not a member of the union at the time. Sub-section (3) Of the same section provides as follows :-

18. (3) A settlement arrived at in the course of conciliation proceedings under this Act or an award of a labour court, tribunal or national tribunal, which has become enforceable shall be binding on-

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the board, 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 (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 (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.

Section 19 prescribes the period of operation of settlements and awards. Sub-section (1) of that section provides:

A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date it agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute.

It is significant to note that, before this sub-section is amended, after the words ' a settlement,' there were the words ' arrived at in the course of a conciliation proceeding under this Act.' But, these words were omitted by Section 14 of the Act 36 of 1956. So that, Section 19(1) now applies to all settlements between the employer and the workmen whether or not they were arrived at in the course of conciliation proceedings and it is also significant to note that the definition of 'settlement' in Section 2(p) amended by the very same Act includes also 'agreements' though they were not arrived at in the course of conciliation proceedings. Sub-section (2) of Section 19 provides:

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 any intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement.

It has to be noted that, in this case, the parties agreed specifically in writing that the settlements dated 1 July 1961 and 10 December 1962 shall be in force for a period of three years from 1 July 1961, i.e., till 1 July 1964. By reason of Sub-section (2) of Section 19, these agreements will continue to be binding on, the parties even after 1 July 1964 until the expiry of two months from the date on which a notice in writing of any intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement. Therefore, it is argued by the learned Counsel for the appellants that till the settlements dated 1 July 1961 and 10 December 1962 are terminated in the manner specified in Sub-section (2) of Section 19, the industrial dispute cannot arise under law With regard to the management's rights to retrench the workers as that issue was already settled by Clause (3) of the second settlement, dated 10 December 1962. Hence, even assuming that the president of the union requested the conciliation officer to consider this question also and an agreement is arrived at between the union on the one hand and the company on the other recognizing the right of the company to retrench the 92 workers, it will be illegal and opposed to Sub-section (2) of Section 19.

6. It is also necessary at this stage to refer to the provisions in the Act regarding the conciliation proceedings. Section 2(e) defines 'conciliation proceeding' as any proceeding held by a conciliation officer or board under the Act and Clause (d) of the same section defines ' conciliation officer ' as a conciliation officer appointed under the Act. Section 11 specifies the procedure and powers of conciliation officers, boards, courts and tribunals. Among others, a conciliation officer has the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters:

(a) enforcing the attendance of any person and examining him on oath;

(b) compelling the production of documents and material objects;

(c) Issuing commissions for the examination of witnesses;

(d) In respect of such other matters as may be prescribed.

The duties of the conciliation officer were prescribed under Section 12, which is as follows:

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) 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 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 national tribunal, it may make such reference. Where the appropriate Government does not make such a reference, it shall record and communicate to the parties concerned its reasons therefor.

(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government:

Provided that the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute.

It is under Sub-section (3) of this section that the settlement, dated 20 December 1963, which is now challenged in this writ petition and appeal, was arrived at and reported to the Government with a memorandum of the settlement signed by the parties to the dispute. The argument of Sri P.R. Ramachandra Rao, the learned Counsel for respondent 2, is that, since this settlement arrived at in the course of the conciliation proceedings under Section 12(3) of the Act is binding not merely on all the parties to the dispute but also on the class of persons mentioned in Clauses (b), (c) and (d) of Sub-section (3) of Section 18, whether or not they are members of the union, which was recognized by the company and which contains a majority of the workers, it follows that the settlement is also binding on the petitioners in the writ petition and the appellants in this appeal.

7. In Sirsilk, Ltd., and Anr. v. Government of Andhra Pradesh and Anr. 1963-II L.L.J. 647 before an award was published under Section 17 of the Industrial Disputes Act, the parties to the dispute which had been referred for adjudication came to a settlement, and requested the Government not to publish the award. But the Government expressed its inability to withhold the publication of the award, the view taken by the Government being that Section 17 of the Act was mandatory and the Government was bound to publish the award. In respect of the subsequent settlement under Section 18(1) of the Act, the stand taken by the Government was upheld by the High Court in a writ petition. On appeal to the Supreme Court, after referring to the relevant provisions in the Act and pointing out that a settlement as denned in Section 2(p) 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 may be prescribed and a copy thereof has been sent to the appropriate Government and the conciliation officer,

the Supreme Court held as follows:

This should ordinarily ensure that the-agreement has been arrived at without any of those defects to which we have referred above, if it is in accordance with the rules. Then Section 18(1) provides that such a settlement would be binding between the parties and Section 19(1) provides that it shall come into force on the date it was signed or on the date on which it says that it shall come into force. Therefore, as soon as an agreement is signed in the prescribed manner and a copy of it is sent to the Government and the conciliation officer, it becomes binding at once on the parties to it and comes, into operation on the date it is signed or on the date which might be mentioned in it for its coming into operation. In such a case there is no scope for any inquiry by Government as to the bona fide character of the settlement which becomes binding and comes into operation once it is signed in the manner provided in the rules and a copy is sent to the Government and the conciliation officer. The settlement thus become binding and in many oases having already come into operation, there in no scope for any inquiry by the Government as to the bona fides of the settlement. In such a case, in view of the possibility of conflict between the settlement in view of its binding nature under Section 18(1) and an award which might become binding on publication under Section 18(3), the proper course for the Government is to withhold the award from publication to avoid this conflict.

In the present case, since the dispute relating to the right of the management to retrench the workers was settled under Section 18(1) of the Act by the supplementary settlement dated 10 December 1962, that dispute can no longer be said to exist till that settlement is terminated in the manner prescribed by Section 19(2) of the Act. Therefore, it will not be open either to the company or to the workers representing their union to raise the question again during the conciliation proceedings. In other words, an industrial dispute raising the question of retrenchment of the workers cannot in law be permitted to be raised so long as the prior settlement is not terminated in accordance with Section 19(2) of the Act. It follows that the settlement dated 20 December 1963 permitting the management to retrench the 92 workers mentioned therein is illegal, void and is of no effect. The learned Counsel for the appellants also referred to the decision in Desi Textile Mills v. State of Mysore A.I.R. 1962 Mys. 174, That case concerned a reference made by the State Government under Section 10(1)(c) of the Industrial Disputes Act referring to the labour court the following dispute:

Is the management of Desi Textile Mills, Bangalore, justified in dismissing all the workmen of the factory as a sequel to the stay-in-strike on 22 October 1966? If not, whether the workmen are entitled to reinstatement or any other relief ?

At a conference held on 23 and 25 June 1956 many matters in controversy between the workmen and management of the industries were settled by agreement between the parties including the dispute relating to the termination of the services of some of the workmen. That was a case before Sections 2(p) and 18 and 19 were amended by Act 36 of 1956. The learned Judges held:

There might be a settlement not arrived at as a result of conciliation and therefore does not fall within Secton 19 but nevertheless, ends an industrial dispute. There is nothing in Section 19 of the Industrial Disputes Act or in Section 2(p) of that Act as it stood before its amendment, which justifies the view that settlement not falling within Section 19 does not end an industrial dispute. The only purpose of Section 19 is to fix the period of operation of settlements falling within the definition contained in Section 2(p). That section does not limit the scope or effect of settlement other than those arrived at in conciliation proceedings.

Then, the learned Judges made the following observations with regard to the amendments introduced by Act 36 of 1956:

The view that I take receives strong support from the amendment to Section 2(p) of the Industrial Disputes Act. The definition, as it now stands, of a 'settlement' contained in that clause of Section 2 makes it clear that even a private settlement on and after the date on which that clause was amended, is equally governed by the provisions of Section 19 of the Industrial Disputes Act. The amendment, in my opinion, is a clear legislative recognition of the efficacy of a private settlement between which and a settlement arrived at in conciliation proceedings, it would be impossible to recognize any distinction for the investigation of the question whether such settlement does or does not bring to an end an industrial dispute.

Sri P.R. Ramachandra Rao, the learned Counsel for respondent 2, referred to the decision in Poona Mazdoor Sabha v. G.K. Dhutia 1966-II L.L.J. 319. That case also arose before the relevant provisions of the Industrial Disputes Act were amended by Act 36 of 1956. It was pointed out:

The object of the Industrial Disputes Act is to bring about industrial peace and there is no industrial peace unless there is an agreement between the contending parties which is binding upon them and which they are bound to respect in law.

The only settlement between the parties which is binding is the settlement arrived at through the instrumentality of the conciliation officer. That is clear from the provisions of Section 19(3). It is only that settlement upon which the law has put its imprimatur and to which the law has given sanctity and which the law has made binding.

Chagla, C.J., who delivered the judgment of the Court, further pointed out:

Industrial law takes no notice of any private settlement or agreement arrived at between the parties in the course of an industrial dispute. Such a private agreement belongs to the realm of contract; it may give rise to contractual rights; but when we are dealing with industrial law, it has no sanction whatsoever, and therefore in the eye of the industrial law, in our opinion, an industrial dispute does not end until a settlement is arrived at, which settlement has been given a binding effect under the provisions of Section 19(2), and such a settlement can only be arrived at when conciliation proceedings are held under Section 12.

The view taken by the Bombay High Court in the above decision is opposed to the view taken by the Mysore High Court in Desi Textile Mitts v. State of Mysore A.I.R. 1962 Mys. 174 (vide supra). But, as was pointed out in the judgment of the Mysore High Court, after the amendment was introduced by Act 36 of 1956, there is no difference at all between the settlements arrived at in the course of conciliation proceedings and the settlements other than those arrived at is conciliation proceedings where they are signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate Government and the conciliation officer. We, therefore, hold that till the settlement, dated 10 December 1962, is lawfully terminated under the provisions of the Industrial Disputes Act, the said settlement is binding on the parties thereto and that, in view of Clause 3 of that settlement, no industrial dispute regarding the right of the management to retrench the workers could lawfully arise or could be the subject of settlement again in the conciliation proceedings.

8. By letter, dated 5 April 1963, the Praga Tools Employees' Union, represented by its president, Sri N. Satyanarayana Reddi, and the general secretary, M.A. Razack, made certain demands to the managing director of the Praga Tools Corporation, Ltd. But the question of retrenchment does not find a place there. By letter dated 19 July 1963 addressed by the Praga Tools Employees' Union, represented by its president, Sri N. Satyanarayana Reddi and general secretary, M.A. Razack, referred to those demands in their memorandum dated 5 April 1963 and pointed out that the management was not even prepared to discuss the revision of wage-structure and dearness allowance. Therefore, the conciliation officer was requested to initiate conciliation proceedings. Even in this letter, there is no reference to any dispute about the claim of the management to retrench any of the workers. Our learned brother, Gopal Rao Ekbote, J., in his judgment, referred to a letter dated 5 April 1963 said to have been written by the Praga Tools Employees' Union, which brought the whole matter of retrenchment on the pending list by the consent of the parties and the conciliation officer seems to have been satisfied that there is an industrial dispute and then lent his services for bringing about a conciliation in regard to that. This letter was again referred to by our learned brother in the latter part of his judgment, in the following manner:

The only allegation made during the course of the argument is that, in order to spite the rival union and its members, the retrenchment was brought about in an extraordinary manner. It is contended that normally the union would not have agreed for retrenchment, but it is the union which initiated the proposal of retrenchment by the letter, dated 5 April 1963. The management took advantage of that letter and agreed to that proposal, the conciliation officer not objecting to it.

By his letter, dated 29 July 1963, the conciliation officer intimated the general manager, Praga Tools Corporation, Ltd., that he admitted in conciliation under the Industrial Disputes Act, 1947, the following matter:

Issue.-Demands of the workmen relating to revision of wage-structure, dearness allowance, determination of cadre strength, promotions, superannuation, etc., espoused by the union through its letter, dated 5 April 1963.

It is quite clear that neither the letter dated 5 April 1963 nor the letter dated 19 July 1963 nor the letter dated 29 July 1963 and the issue framed by the conciliation officer relate to the retrenchment of the workers. The letter dated 5 April 1963 is also referred to in the counter-affidavit of R.C. Raizada in the writ petition, the administrative officer of the Praga Tools Corporation, Ltd. When it was pointed out to Sri P.R. Ramachandra Rao, the learned Counsel for respondent 2, that the letter dated 5 April 1963 does not refer to the question of retrenchment of the workers, he agreed and stated that the reference to the letter dated 5 April 1963 is a mistake. But he sought to place before us another letter dated 3 December 1963 by which the Praga Tools Employees' Union wanted the question of retrenchment also to be taken on file in the conciliation proceedings which were then pending. In the view we have taken that so long as the settlement dated 10 December 1962 was not terminated in accordance with the provisions of the Industrial Disputes Act, no industrial dispute can, in law, arise with regard to the right of the management to retrench the workers, we have to hold that the settlement dated 20 December 1963 in so far as it permitted the management to retrench some of the workers is illegal and void.

9. But it is argued by Sri P.R. Ramachandra Rao, the learned Counsel for respondent 2, that the Writ Petition No. 1501 of 1963 is not maintainable under Article 226 of the Constitution of India for two reasons:

(1) The Praga Tools Corporation, Ltd., is not a person or authority within the meaning of the article and therefore, any writ in the nature of a writ of mandamus or an order or direction restraining it from giving effect to the settlement dated 20 December 1963 cannot issue.

(2) The conciliation officer, when acting under Section 12 of the Industrial Disputes Act, is not acting in a judicial or quasi-judicial manner, but was only trying to persuade the parties to come to a fair and amicable settlement.

Therefore, the agreement dated 20 December 1963, which purports to be one under Section 12(3) of the Act, cannot be regarded as any kind of order or decision. It is not, therefore, susceptible to correction by certiorari. In support of this contention, the learned Counsel relied upon the decision in Employees of Caltex (India) v. Commissioner of Labour and Anr. 1959-I L.L.J. 520. In that case, the conciliation officer reported to the Government under Section 12(4) of the Act on 2 August 1958 that it has not been possible to bring about a settlement of the dispute. It appears that there were further attempts and a settlement was reached on 16 October 1958 which was recorded under Section 12(3) of the Act. The question was whether the said settlement was one under Section 12(3) of the Act and was binding on the workmen. The learned Judge pointed out that the conciliation officer had earlier reported failure and after that failure, there had been no resumption of conciliation proceedings by the conciliation officer and that a settlement brought about owing to the intervention of other persons cannot be treated as a settlement arrived at in the course of conciliation proceedings within the meaning of the statute and hence the settlement in question therein could not be regarded as a settlement under Section 12(3) of the Act. But the learned Judge proceeded to state:

This, however, is not sufficient to dispose of the matter. A writ of certiorari can issue only in relation to a judicial or ' quasi-judicial act and I am unable to persuade myself that when acting under Section 12 of the Industrial Disputes Act a conciliation officer is acting in a judicial or quasi-judicial manner. No doubt, there are opposing parties and various points at issue between them. But the conciliation officer is not competent to hear or decide any of them. All he can do is to try to persuade the parties to come to a fair and amicable settlement.

* * *It is also difficult to see how the circumstance that the conciliation officer has signed at the foot of the agreement and the agreement purports to be one under Section 12(3) of the Industrial Disputes Act can be regarded as any kind of order or decision. It is not therefore susceptible to correction by certiorari.

Finally, the learned Judge dismissed the writ petition.

10. Reliance also is placed by the learned Counsel on the decision in Maturi Durgiah v. Agent, Tandur Collieries (1961) 1 And. W.R. 81, where it was pointed out by a Bench of this Court:

There can be little doubt that a writ of mandamus could only be isssed to inferior Courts, tribunals and bodies entrusted with powers by the law of the land to effect the legal rights of the parties. We do not think that the Tandur Collieries or the agent thereof could be described as a tribunal or a body entrusted with powers by the law of the land to effect the legal rights of the parties. There is abundant authority for this position.

In Sohan Lal v. Union of India A.I.R. 1957 S.C. 629, the Supreme Court pointed out:

Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty [Halsburys Laws of England, Vol. II, Lord Simonds Edition, p. 84]. If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagannath of his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court.

But the learned Counsel for the appellants referred us to the decision in Nagpur Corporation v. N.E.L. and P. Company : AIR1958Bom498 . The learned Judges, in that case, were considering a writ petition under Article 226 of the Constitution for the issue of a writ of mandamus to the Nagpur Electric Light and Power Company, Ltd., Nagpur, the respondent in that petition, directing it to restore immediately the supply of electrical energy to the public lamps in the city of Nagpur. One of the questions that arose for decision was whether such an order could issue under Article 226 of the Constitution, The learned Judges dealt with this question in the following manner:

Finally, Sri Phadke says that the respondent is not a public authority and that no writ can issue against it. He referred in this connexion to the decision of the Supreme Court in Sohan Lal v. Union of India : [1957]1SCR738 and 11 Halsbury's Laws of England, Vol. II (3rd Edn.), p. 85, Para, 159. In the Supreme Court case, it is held that normally a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty. The statutory duty, devolving upon a public utility concern, is a public duty. Therefore, it cannot be said that a public utility concern like the respondent is in the same position as a private party.

As pointed out in 73 Corpus Juris Secundum 998-

As a general rule, a public utility has the duty to give the public reasonable and adequate service at reasonable rates and without delay.

A public utility has the duty to supply a commodity or to furnish service to the public. This duty exists independently of statutes regulating the manner in which it shall do business or of contracts with municipalities or individuals, and is imposed because the utility is organized to do business affecting a public interest and hold itself out to the public as being willing to serve all members thereof. Broadly speaking, the primary duty of a public utility is to give reasonable and adequate service at reasonable rates and without delay.

Such being the position, a writ can issue at the instance of any consumer to a public utility concern for its failure to perform its duty under the Electricity Act or under its licence. Similarly, a writ can issue to it restraining it from abusing its powers under any of the provisions of the Act or under its licence.

Then the learned Judges referred to the following passage in 11 Halsbury's Laws of England, p. 84, Para. 159:

The order of mandamus is an order of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty.

Then, the learned Judges pointed out:

This statement of law, instead of helping the respondent, directly goes against it. As pointed out in Corpus Juris Secundum, the duty to supply electrical energy resting upon an electrical undertaking is a public duty and therefore a writ can issue to it requiring it to perform that duty.

In that context, the learned Judges referred to the following passage at p. 91 of the same volume (11 Halsbury's Laws of England):

A mandamus will issue to an official of a society to compel him to carry out the terms of the statute by which the society is controlled.

As in that case, the undertaking by the respondent-company to supply electrical energy is a publio duty, the learned Judges held that it could be compelled by issuing a writ of mandamus to carry out the terms of the statute by which it is controlled.

11. The position is summarized in Judicial Review of Administrative Action by S.A. De Smith at p. 432:

The duty to be performed must be of a public nature. Mandamus will not lie to order admission or restoration to an office that is essentially of a private character; nor, in general, will it lie to secure the due performance of the obligations owed by a company towards its members, to resolve any other private dispute.

12. The learned author, in his footnote, referred to Short and Mellor, Practice on the Crown Side, 2nd Edn., p. 208, and observed:

But semble mandamus may still issue to a company constituted by statute for the purpose of fulfilling public responsibilities.

But this consideration does not apply to the Praga Tools Corporation, Ltd.

13. Further, it has to be borne in mind that the period of three years fixed as per the settlement dated 1 July 1961 expired on 1 July 1964 and Clause 3 of the settlement dated 1 July 1961 ceased to be operative after that date. For this reason also, we think that the issue of a writ of mandamus, in the circumstances of this case, will not be appropriate.

14. But Sri Jayachandra Reddi, the learned Counsel for the appellants, submitted that a declaration that the settlement dated 20 December 1963 in so far as it permitted the management to retrench some of the workers is illegal and void may be given, though a writ of mandamus may not issue. In support of this, he relied upon the decision in Thomas v. Industrial Tribunal 1960-II L.L.J. 523 where Ansari, C.J., delivering the judgment of the Court, observed:

The learned Counsel for the writ petitioners has urged that he should be given a declaration of the report by the labour officer being ultra vires, though a writ of certiorari, prohibition or mandamus could not be issued in the case, for otherwise his clients would be without any remedy. We think the declaration about the labour officer's report so far as the two petitioners are concerned being legally void would serve the purpose. Any declaration cannot be given about the petitioners being still legally entitled to the positions they earlier occupied, because we do not know what are the terms of their employment.

Such questions can best be investigated in proceedings other than those under Article 226. The writ petitions, therefore, fail on the short ground that neither certiorari nor prohibition can be issued, as their employer is a private institution, but the petitioners in O.Ps. Nos. 455 and 574 are given the declaration that the report by the labour officer against them is not operative as the relevant parts of the reports have been made without hearing the petitioners or affording them reasonable opportunity. The third petitioner cannot be given any such declaration, for his name is not mentioned in the report.

Subject to the aforesaid declaration, the writ petitions are dismissed and having regard to the circumstances of the case, the parties will bear their costs.

From this, it is clear that though the learned Judges held that neither a writ of certiorari nor prohibition can be issued as the employer is a private institution, still they gave a declaration that the report of the labour officer in question in that case was not operative against the petitioners therein as the relevant parts of the report had been made without hearing them or affording them reasonable opportunity. Such declarations appear to have been given also by the Supreme Court in Bidi, Bidi Leaves and Tobacco Merchants' Association v. State of Bombay and Ors. 1961-II L.L.J. 663 and Abdul Kadir v. State of Kerala : AIR1962SC922 .

15. There are 28 appellants in this appeal. Venkateswara Rao, appellant 18, was not a member of the union when the first two settlements dated 1 July 1961 and 10 December 1962 were entered into and recorded. Therefore, he could not take advantage of Clause 5 of the settlement dated 1 July 1961 read with 01. 3 of the settlement dated 10 December 1962. It is stated that all other appellants than appellants 9, 16 and 25 either accepted compensation under the third settlement dated 20 December 1963 or were otherwise provided with employment. Therefore, any order that has to be passed in this appeal is to be with reference to appellant 6, C.V. Imanual, appellant 16, Mohamed Ibrahim, and appellant 25, Philip D. Costa.

16. The learned Counsel for the appellants, Sri Jayachandra Reddi, states that appellant 28 also was a member of the union at the relevant time and that a declaration has to be given in his favour also. But this fact is disputed by the other side. Appellant 28 can establish his rights, if any, in separate proceedings.

17. In the result, there will be a declaration that the retrenchment of the three appellants 6, 16 and 25 by the Praga Tools Corporation, Ltd., pursuant to the third settlement dated 20 December 1963 is illegal. Subject to this declaration, the writ appeal is dismissed. Having regard to the circumstances of this case, the parties will bear their own costs.


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