1. This petition under Articles 226 and 227 of the Constitution is directed against an award dated 7th February 1968 whereby, instead of determining the Industrial disputes referred to the Central Government Industrial Tribunal, Jahalpur, it merely incorporated in the award the terms of a settlement between the parties before it.
2. The material facts giving rise to this petition may be shortly stated. The petitioner is employed as a Badli coal loader in the New Chirimiri Ponri Hill Colliery at Chirimiri in Surguja District, of which the respondent 2 is the Chief Mining Engineer and is the person ultimately responsible for administration of the coal mine. Sarguja Koyla Khan Karmachari Sangha (respondent 3) is one of the several trade unions of the region, the recognised union being the M. P. Colliery Workers Federation. It transpired that, in the year 1967, several demands were made on behalf of the workers of the aforesaid colliery which were not accepted by the colliery management with the consequence that they gave rise to an industrial dispute. The Central Government took notice of the existence of the industrial dispute and by Notification No. 5/7/67/LR-II dated 10th October 1967 published in the Gazette of India, referred the dispute for adjudication to the Tribunal.
3. The reference is in these terms:
New Delhi, the 10th October 1967.
S. O. No. 3840-- Whereas the Central Government is of opinion that an industrial dispute exists between the employers in relation to the New Chirimiri PonriHill Colliery, P. O. Chirimiri, District Surguja (Madhya Pradesh) and their workmen in respect of the matters specified in the Schedule hereto annexed:
And, whereas the Central Government considers it desirable to refer the said dispute for adjudication;
Now, therefore, in exercise of the powers conferred by Clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby refers the said dispute for adjudication to the Industrial Tribunal, Jabalpur, constituted under Section 7A of the said Act.
(1) Whether the management of the New Chirimiri Ponri Hill Colliery was justified in keeping the following 97 workers, as badlis? If not, to what relief are the workmen entitled?
(2) Whether the existing diet charge of Rs. 1.31 per day paid by the management for one worker patient in their hospital needs upward revision? If so, at what rate?
(3) Whether the workers are entitled to the provision of ambulance or other transport facilities by the management for reaching hospitals in serious cases of sickness or accident? If so, to what relief are the workmen entitled?
(4) Whether the workers employed on Sundays are entitled to be paid wages at twice their ordinary rate of wages? If so, from what date?
(5) Having regard to the terms of the mutual settlement dated the 18th March, 1966 arrived at between the management and their workmen represented by the M. P. Colliery Workers Federation, whether the demand of the workers for payment of arrears is justified? If so, from what date?'
4. In the impugned sward, the Tribunal reproduced the terms of reference and concluded as follows:
'After issue of usual notices, parties filed their pleadings, namely written statements and rejoinders. Before the case could be taken up for hearing, the employers and the union which sponsored the dispute compromised all the five disputes under reference, the terms of which are reproduced in the annexure to this award. The terms of settlement, however, do not specify the manner in which the disputes have been settled. The compromise petition appears to be genuine and neither party appeared on the date of hearing. It is, therefore, accepted and an award is recorded in terms of the settlement'
5. The terms of the settlement referred to in the award are these:
'(1) That the union Representatives viz: (1) Shri Resham Chand, President and(2) Shri H. B. Chakraborty, General Secretary and the Colliery Company representatives viz: (1) G. Srinivasan, Chief Mining Engineer and (2) Shri P. S. Karwatkar, representing the employees, discussed the matter on 28-1-1968 at Nagpur and have amicably settled up the matters that are pending for adjudication before said Tribunal.
(2) As a result of the agreement arrived at between the parties, it is now agreed that all the five demands that are referred to for adjudication by the Central Government under the abovesaid notification have been fully settled and there now remains nothing for adjudication by the Tribunal so far as these 5 specific demands are concerned.
(3) That the employers agree to pay to the Union within a fortnight from the date of this agreement, a sum of Rupees 3,000 (Rupees three thousand) only as a token of good will and co-operation and in final satisfaction of all the matters arising out of these 5 demands.
(4) In view of this agreement, it is not now necessary for the Tribunal to adjudicate this matter and an Award be passed incorporating the terms of this settlement.
(5) There will be no order as to costs.'
6. Having heard the counsel, we have formed the opinion that this petition must be allowed. Our attention is drawn to the provisions of Section 36 of the Industrial Disputes Act, 1947, and it is argued that it is not competent to an individual worker to challenge an award because he is no party to an industrial dispute within the meaning of the Act. So far as the proceedings under the Act are concerned, that is a well-recognised general rule because of the importance afforded to collective bargaining. However, even then exceptions are not unknown.
So, in Ram Prasad v. Industrial Tribunal, AIR 1961 SC 857, Das Gupta J., speaking for the Court stated:
'While it will be unwise and indeed impossible to try to lay down a general rule in the matter, the ordinary rule should in our opinion be that such representation by an officer of the trade union should continue throughout the proceedings in the absence of exceptional circumstances which may justify the Tribunal to permit other representation of the workman concerned.'
7. Admittedly the petitioner here is one of the Badli workers whose claims for permanent employment in the colliery was specifically referred to the Tribunal. His contention is that this dispute was not determined by the Tribunal in accordance with the requirements of the Act. In our opinion, the petitioner is a person aggrieved by the impugned order and he is en-titled to move this Court for the issuance of a writ in its extraordinary jurisdiction. This view does not in any way run counter to the decision in West Bengal Press Workers' and Employees' Union v. Art Union Printing Works Private Ltd., AIR 1962 Cal 649 to the effect that a union of workmen, if aggrieved by an award, may also take like action. We may add that the provisions of Section 36 of the Act are restricted in operation to proceedings under the Act and do not come in the way of a workman aggrieved by an award invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution.
8. It was next contended on behalf ofthe Colliery Management that the award given by the Tribunal was, as provided by Section 17(2) of the Act, final and could not be called in question in any Court in any manner whatsoever. It is now well settled that such a provision does not affect the jurisdiction of this Court under Articles 226 and 227 of the Constitution to examine and determine whether the provisions of the statute have been complied with: Bharat Bank Ltd. Delhi v. Employees of Bharat Bank Ltd. Delhi, AIR 1950 SC 188 and Parry and Co., Ltd. v. Commercial Employees Association Madras, AIR 1952 SC 179.
9. The main question for consideration is whether the Tribunal could, as it did in this case accept an amicable settlement between the parties which 'did not specify the manner in which the disputes have been settled' and make an award in terms of that settlement because 'there now remains nothing for adjudication by the Tribunal so far as these five specific demands are concerned.' We are clearly of opinion that the Tribunal could not act in that way without disregarding the provisions of the Act. The word 'award' as defined in Clause (b) of Section 2 of the Act means 'an interim or final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10A.' We think that the word 'determination' used in the definition implies adjudication upon relevant material by the Labour Court or the Tribunal.
So, it has been held that, once a reference has been made under Section 10(1) of the Act, it cannot be rescinded or cancelled: State of Bihar v. Ganguli, 1958-2 Lab LJ 634 = (AIR 1958 SC 1018). It cannot also be dismissed for default because that would amount to putting an end to the proceedings otherwise than by adjudicating upon the dispute: Andhra Handloom Weavers, Co-operative Society v. State of Andhra Pradesh, 1963 2 Lab LJ 488=(AIR 1964 Andh Pra 363) and British India Corporation Ltd. v. LabourCourt, Kanpur, 1964-1 Lab LJ 601 (All).
In this case, the Tribunal did not adjudicate upon the five industrial disputes referred to it and accepted a private settlement between the parties, which did not disclose in what manner the disputes had been settled, all because, in view of the settlement, there remained nothing for adjudication in regard to those disputes. We are of the view that, in taking up that attitude, the Tribunal abdicated its duty of adjudicating upon the dispute.
It is argued that it was open to the Tribunal to record a compromise or agreement between the parties and, in so doing, the Tribunal did not contravene any of the provisions of the Act. For this view, reliance was placed upon Krishnakutty Nair v. Industrial Tribunal, 1957-2 Lab LJ 45 = (AIR 1960 Ker 31) and more particularly the following observations of the learned Single Judge of the Kerala High Court, who decided that case:
'Now, it is the elementary right of the parties to dispute to adjust their matters of differences wholly or in part, by any lawful agreement or compromise. And every authority entrusted with the task of adjudicating the dispute has a duty, not a discretion, to record such agreement or compromise subject possibly to an inherent power of refusal when substantial injustice would be worked. A tribunal, therefore, to whom an industrial dispute is referred for adjudication under Section 10(1)(c) of the Industrial Disputes Act, must record a lawful agreement or compromise placed before it by the disputants. There is nothing in the Act to suggest that a particular class of agreement or compromise is outside its scope, though whether a particular compromise is lawful or not will vary with the varying character of different disputes. The expression 'determination' in the definition of 'award' in the Act indicates only a coming to an end, may be in any way whatever, though it may require examination and choice. What then is the difficulty when contending parties before the tribunal settle their outstanding disputes amicably between themselves and ask the tribunal to strike off the reference or in different context, whore they decide upon a machinery of their own choice for resolving their differences and require the tribunal to sanction a withdrawal on such basis. The most that could possibly be said is that the agreement or compromise placed before the tribunal for acceptance should not involve anything improper, illegal or prima facie unjust from the point of view of the exercise of the overwhelming power of the employer against the workmen.'
With respect, we do not find ourselves able to agree with all these observations.
In that case, during the pendency of a reference under Section 10(1) of the Act, the parties agreed to refer the matters in dispute to private arbitration. An application was then made to withdraw the dispute. After holding an enquiry, the Tribunal found the terms of settlement for reference to arbitration to be fair and beneficial to the workers, accepted those terms and held that there remained no subsisting dispute to be decided by it. The learned Single Judge took the view that this was an award within the meaning of the Act. In our opinion, the recording of the settlement, by which the Tribunal allowed the dispute to be withdrawn for settlement by private arbitration, was not an adjudication by the Tribunal and did not amount to an award within the meaning of the Act. Much the same view was taken about the Kerala decision by a Division Bench of the Bombay High Court in Maharana Mills Kamdar Union v. N. L. Vyas, 1959-2 Lab LJ 172 = (AIR 1960 Bom 29) Chainani, C. J. observed:
'The judgment shows that the learned judge was inclined to regard the order made by the tribunal as an award. He has observed that the expression 'determination' in the definition of 'award' indicates only coming to an end, which may be in any way whatever. With respect, it seems to us however, that the definition clearly contemplates determination, of the dispute by an industrial tribunal. Where a dispute is withdrawn from the purview of an industrial tribunal, the proceedings before the tribunal come to an end by the tribunal allowing the dispute to be withdrawn, but there is no determination of the dispute by it.'
(Page 176 of Lab LJ = (at p. 31 of AIR))
10. It is not that a compromise arrived at between the parties before a Tribunal may not be considered by it at all, but the Tribunal cannot deal with it like a settlement between the parties to suit which may be recorded under Order 23, Rule 3 of the Code of Civil Procedure. The reason is that the award made by the Tribunal is, under Section 18 of the Act, binding on all workmen whether parties as nominees or represented before the Tribunal or not. It shows that the Tribunal cannot regard the matter as a settlement of a dispute between two or more parties before it. Nevertheless, it can adopt the compromise entered into by these parties as the foundation of its award after considering whether it is a fair and just settlement of the disputes. So, in Workers. 32 Textile Mills v. Dhanalakshmi Mills, AIR 1961 Mad 212 Ramchandra Iyer, J. observed:
'It is implicit in the word 'determination' that it should be judicial, implying that the Tribunal exercises its own judgment. This does not, however, mean thatthe Tribunal is precluded from takingnote of a compromise entered into between the workers and the management.Where there is a compromise, it shouldconsider whether, in its opinion, the compromise could be adopted as its owndetermination of the dispute, that is, whether it is fair, just and equitable betweenthe parties.' (Page 214)
In the case before us, even the mannerin which the five disputes were amicablysettled was not disclosed to the Tribunal,That being so, the award dated 7 February1968 is not a valid award within themeaning of the Act. Indeed, as we haveindicated earlier, the Tribunal declined toexercise jurisdiction on the view (whichit accepted and adopted) that there remained nothing for adjudication by theTribunal in regard to the five specificdemands.
11. The only other point pressed for our consideration is that, since the disputes had already been amicably settled, no useful purpose would be served by remitting the case to the Tribunal. As we have already indicated, this contention is grounded upon an erroneous assumption that any such amicable settlement during the pendency of a reference, without more, should itself be regarded as a determination of the industrial disputes which must be accepted and acted upon by the Tribunal.
12. Towards the close of the arguments, it was faintly suggested, apparently for the first time, that the Central Govt. was a necessary party only because it had published the award under Section 17 of the Act. In our opinion, the Central Government does not have, by reason only of the fact that it performed its statutory duty of publishing the award, that kind of interest in the matter which world make it a necessary party to a dispute like the one here. Even otherwise, we think the Central Government does not have in this depute such interest as might entitle it to be regarded as a necessary party.
13. The result is that this petition succeeds and is allowed. The award dated 7th February 1968 and its publication in the Gazette of India dated 24th February 1968 are quashed. The case is remitted to the Tribunal (respondent 1) for determining the dispute afresh in accordance with law with advertence to the observations in the foregoing paragraphs. The respondent 2 shall pay the costs of the petitioner to whom the security amount shall also be refunded. Hearing fee is fixed at Rs. 100.