S.S. Ghadha, J.
(1) This appeal under Clause X of the Letters Patent read with Section 10 of the Delhi High Court Act, 1966 is directed against the judgment of the learned Single Judge dated August 26, 1977 whereby the writ petition filed under Articles 226 and 227 of the Constitution for quashing the order dated March 28, 1972 referring the disputes by the Delhi Administration to the Additional Industrial Tribunal for adjudication and the order dated September 12, 1973 passed by Shri K.S. Sidhu, Presiding Officer of the said Tribunal determining the preliminary issues, was dismissed.
(2) The appellant, Delhi Cloth & General Mills Go. Ltd. is a public limited company (hereinafter referred to as the Management). The workmen employed by the Management in their Textile Marketing Organisation and as represented by the union known as D.C.M. Clerks Association (Regd.), Delhi served a notice of demand to the Management raising as many as 21 demands. The demands were not accepted by the Management, and an Industrial Dispute being apprehended, the matter was referred to the Conciliation Officer of Delhi Administration by D.G.M. Clerks Association (Regd.), Delhi by filing a claim dated September 26, 1970. Fhe Management and the workmen represented by D.G.M. Clerks Association (Regd.), Delhi entered into a settlement dated September 30, 1970 and filed it before the Conciliation Officer. The case of the appellant is that it is a conciliation settlement entered into in the prescribed form after complying with the provisions of the law. The settlement was to remain in operation initially for a period of four years with effect from January 1, 1969 and was a valid and finding settlement under Section 18 of the Industrial Disputes Act, 1947 (hereinafter called the Act).
(3) It appears that there was a split amongst the employees themselves. A rival union was formed known as D.G.M. Commercial Staff Union (hereinafter called the Union), by some employees of the Management. On May 10, 1971, and May 17, 1971 the Management received notices of demand from one of the office-bearers of the Union, namely, the General Secretary. The Executive Committee of the Union passed an espousal resolution on May 27, 1971 to raise the demands made in the notices dated May 10, 1971 and May 17, 1971 against the Management. Thereafter, the Union filed a statement of claim before the Conciliation Officer, Delhi who took up the conciliation proceedings and later submitted his failure report to the Lt. Governor, Delhi. On a consideration of the said report, the Lt. Governor, Delhi was satisfied that an Industrial Dispute existed between the Management and its workmen as represented by the Union and made the impugned order of reference dated March 26, 1972.
(4) The workmen represented by the Union filed a statement of claim before the Addl. Industrial Tribunal. The Management filed their written statement which was subsequently amended. The workmen filed a rejoinder. On the pleas raised by the parties, the Addl. Industrial Tribunal (for short called the Tribunal) framed the following preliminary issues :-
'(1)Whether the term of reference is barred by settlement dated September 30, 1970 or not (2) Whether any valid demand was raised with the management or not (3) Whether the Union has any locus standi or not (4) Whether the dispute was properly and validly espoused or not (5) Whether the reference has been made by a competent and appropriate Government (6) Whether the present Tribunal is properly constituted or not ?
(5) The Tribunal vide the second impugned order dated September 12, 1973 held that the settlement dated September 30, 1970 was not arrived at in the course of conciliation proceedings and that it was a private settlement and since the provisions of Rule 58 of the Industrial Disputes (Central) Rules, 1937 (hereinafter referred to as the Rules) were not complied with, it was not finding except on the parties to that settlement. It was also held that a valid demand had been raised with the Management in respect of all the three terms of reference; that the Union had a locus standi in the matter and that the dispute had been validly espoused. Issues 5 and 6 were answered in favor of the workmen. The learned Single Judge by a very exhaustive judgment came to the conclusion that the settlement dated September 30, 1970 did not fall within the scope of the definition of the settlement arrived at during the course of the conciliation proceedings. The learned Single Judge also came to the conclusion that there existed a valid demand and a valid espousal entitling the appropriate Government to make the impugned reference.
(6) The main submission of Shri Rameshwar Dayal, the learned counsel for the Management is that the demands were admittedly made in the letters dated May 10, 1971 and May 17, 1971 signed by Shri K.G. Malik, General Secretary of the Union who was not authorised by the Executive Committee of the Union or the workmen themselves at any general meeting of the Union to serve the demand notices. He contends that a demand can be raised by the workmen when a substantial number of workmen in a meeting called for the purpose pass a resolution to raise the demand and thereafter the demand notice is served on the Management and the Management refuses to accept the demand, that an appropriate Government can form an opinion of an existing or apprehending Industrial Dispute. In our opinion, this submission is an extension of the stand taken before the Tribunal and even before the learned Single Judge. Before the Tribunal, the challenge was restricted that the demand made by the Union must be preceded by a formal resolution of the Union authorising the demand. It was not the case of the Management that the Executive Committee of the Union representing the workmen could not pass a resolution for making the demand. There was evidence before the Tribunal in letters, Exs. WW-2/6, WW-2/5 and WW-2/7 that the workmen had served valid notices of demand on the Management in respect of the dispute. There was the resolution, Ex. WW-2/8 which was passed on May 27, 1971 relating to espousal. The Tribunal rightly came to the conclusion that it would be taking a hypertechnical view to hold that the resolution regarding demand must precede the making of the demand by the Union on behalf of the workmen on the Management. The learned Single Judge after referring to the copies of the notices of demand dated May 10, 1971 and May 17, 1971 and to the resolution dated May 27, 1971 as well as the statement of Shri K.G.Malik, W.W. 2 came to the conclusion that the demands so raised were subsequently adopted by the Union, in its resolution. Reference was also made to the statement of Shri K.G.Malik which stands unrebutted, that the Secretary was authorised by the Executive Committee to issue the notices dated May 10,1971 and May 17,1971. We are, thereforee, not inclined to examine and express our view on a hypothetical question not raised earlier that a valid demand could be made only after the workmen at a meeting authorised the Secretary to serve the demand. Such a challenge is not even made in the grounds of the Letters Patent Appeal The ground taken is that the Secretary of the Union had no power under the Constitution governing the functioning of the Union to raise any demand of his own, nor is there any evidence to show that such demands were subsequently ratified by the Union. There is ratification by the Union. The challenge is not made that the ratification has to be by the workmen themselves in a meeting for authorisation to serve the demand notices.
(7) The counsel for the Management next wants to raise a larger issue from a different angle as to the powers and authority of the Union as a representative body to do any act on behalf of its members. Two aspects are urged under this submission. He says that a substantial number of workmen of the Management have to be members of the Union at the relevant time to give the locus standi to the Union to raise the demand or espouse the cause of the workmen. According to the counsel, the Union has to establish the representative character for which no evidence has been led. Let us see the objection taken in the written statement by the Management. It says that Union is not competent to raise the issue, 'inasmuch as it does not have any appreciable membership amongst the said staff and is not a representative union, and is, thereforee, precluded from raising dispute on behalf of majority.'The frame of issue No. 3 has cast the onus on the parties to prove. The Tribunal referred to the statement of Shri K. G. Malik, President of the Union who deposed that as in December, 1970, there were 133 workmen of employer on the rolls of membership of the Union. The Management did not produce any evidence as to the total number of workmen in its employment at the relevant time From this evidence, the Tribunal recorded the finding that substantial number of workmen of the Management were members of the Union at the relevant time and, thereforee, it has locus standi in the matter. This finding of fact being supported by the material on the record, is not open to judicial review in the proceedings under Article 226/227 of the Constitution. It is clearly established on the record that the dispute has been taken up by the Union which has an appreciable number of employees of the establishment. The Management withheld the information from the Tribunal as to the total number of the employees in the establishment. The Tribunal impliedly drew adverse inference against the Management by concluding that 133 workmen are substantial number of employees of the establishment. We do not find any reference to any arguments challenging the (finding of locus standi and will presume that it was not urged before the learned Single Judge. There is no ground that such a point was urged before the learned Single Judge and was not dealt with. Similar is the position to the challenge that there should be express authority by the workmen authorising the Union to take up particular matter for reference. The resolution of the Executive Committee of the Union dated May 27, 1971, Ex.WW-2/8,is the espousal by the Union of the demands raised in notices dated May 10, 1971 and May 17, 1971 (Exs. WW-2/5 to WW-2/7). There is thus the existence of the interest of the workmen as a Community evidenced by the espousal of the cause by the Union representing 133 workmen of the establishment. No objection is raised in the written statement before the Tribunal that the constitution of the Union did not authorise the passing of the resolution of espousal by the Executive Committee of the Union. We cannot allow disputed questions of fact being raised for the first time in the Letters Patent Appeal. We, thereforee, do not deal with 'The Kandans Textile. Limited and The Industrial Tribunal (1) Madras' 1949 L.L.J. 875 and 'The Bombay Union of Journalists and Others v. The Hindu, Bombay and another' 1961 (1 ) L.L J. 349.
(8) The counsel for the appellant lastly urges before us that the settlement arrived at between the Management and the D.G.M. Clerks Association (Regd.) on September 30, 1970 fulfillled all the requirements and conditions of a settlement arrived at in the course of conciliation proceedings as defined in Section 2(p) of the Act read with Rule 58 and was drawn up between the parties in Form H prescribed under the Rules and there has been compliance with the mandate of Rule 58. The counsel makes reference to these facts on the record. The dispute between the D.G.M. Clerks Association and the Management was raised on May 7,1970 by means of a demand notice consisting of 21 demands. The demands were not accepted by the Management. The D.G.M. Clerks Association filed a claim before the Conciliation Officer on September 26, 1970. On September 30,1970 a settlement was arrived at between the Management and the D.G.M. Glerks Association. The D.G.M Clerks Association representing the workmen and the Management presented and filed the same before the Conciliation Officer. He then invites our attention to the evidence of the Conciliation Officer that prior to the filing of the settlement, the parties had appeared before her and told her that the matter was being discussed between them. On September 30, 1970 the settlement which already bore the signatures of Shri H. C. Jain, was signed amongst others by S/Shri Mudaddi Lal and Roopa Nand, the President and Vice-President respectively of the D.G.M. Glerks Association in the presence of the Conciliation Officer. Thereafter, the settlement was signed by the Conciliation Officer in token other approval in fulfillment of requirements of Form H. The submission is that the settlement squarely fall within the scope and ambit of a settlement arrived at in the course of conciliation proceedings and all the requirements of law stood fully complied with.
(9) Section 2(p) of the Act provides as under :-
'SETTLEMENT'means a settlement arrived at in the course of conciliation proceeding and 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 an officer authorised in this behalf by the appropriate Government and the conciliation officer.'
(10) The learned Single Judge has analysed the evidence before the Tribunal when he came to the conclusion that it was not a settlement arrived at in the course of the conciliation proceedings. The testimony of Mrs. Bassi, Conciliation Officer examined by the Tribunal as W.W. 1 shows that a statement of claim dated September 26, 1970 made by the D.C.M. Clerks Association was received on September 28, 1970. The Conciliation Officer did not initiate any proceedings for conciliation. No notices for holding the conciliation proceedings were issued. No investigation was made by the Conciliation Officer. No negotiations ware held by the Conciliation Officer. The Conciliation Officer did not make any attempt or induce the parties for reaching a settlement. The appellants do not aver or prove as to how the settlement was promoted or induced by Mrs. Bassi. The Conciliation Officer did not consider or record her satisfaction that it was a right settlement. In fact, in answer to the question whether she held conciliation proceedings in respect of the dispute to the agreement dated September 30, 1970, she wanted to know as to what was meant by conciliation proceedings. Thereafter the provisions of Sections 10 and 12 of the Act were brought to her notice. This answer reveals that she was blissfully ignorant as to what is meant by ''in the course of conciliation proceedings'. In our opinion, the legislature when it made a settlement finding not only on the parties but also to the present and future employers and the workmen intended that such settlement is arrived at in the course of conciliation proceedings. A settlement which can be said to be arrived at in the course of conciliation proceedings must be one which is arrived at during the time of the pendency of the conciliation proceedings. There is no pendency as admittedly the Conciliation Officer did not issue any notice for any conciliation. The settlement has also to be arrived at with the assistance of the Conciliation Officer and his concurrence. In this case nothing happened before the Conciliation Officer. She did not play any part to bring into being any settlement. She did not apply her mind whether the settlement is fair or reasonable. It was thus rightly held that it was a settlement de hors the conciliation proceedings.
(11) Assuming that the settlement is arrived at between the Management and the workmen other than in the course of conciliation proceedings, the counsel than urges, that there was no requirement of law for sending the copy of the settlement to the Central Government, the Chief Labour Commissioner (Central), New Delhi, Regional Labour Commissioner (Central), Assistant Labour Commissioner (Central) concerned. This argument is founded on the submission that Rule 58 was framed in the year 1957 but in the year 1965 Section 2(p) was amended to provide for a copy to be lent to 'an officer authorised in this behalf'. Obviously, the officer authorised in this behalf had to be an officer to be authorised after the amendment of the section in the year 1965 and not any officer mentioned in the Rules earlier to such amendment. A copy of the settlement was admittedly filed with the Conciliation Officer and since no other officer had so far been authorised in this behalf, the counsel contends, the settlement dated September 30, 1970 was at least a valid settlement outside the conciliation. The challenge is thus made by the counsel to the virus of Rule 58(1) which provides that where a settlement is arrived at between the employer and his workmen otherwise than in the course of conciliation proceedings, the parties have to send the settlement jointly to the specified officers. We have not allowed the counsel to address us on the virus of Rule 58(4) as no such challenge was made in the writ petition or before the learned Single Judge. Such a question cannot be allowed to be raised for the first time in the Letters Patent Appeal.
(12) For the above reasons, the appeal fails and is hereby dismissed with costs. Counsel's fee Rs. l,000.00 .