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Monthly Rated Workmen of Peiree Leslie and Co. Ltd. Vs. the Labour Commissioner and the Chief Conciliation Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Case NumberO.P. No. 3107 of 1964
Judge
Reported inAIR1966Ker204; [1967(14)FLR258]
ActsConstitution of India - Aritcle 226; Industrial Disputes Act, 1947 - Sections 18, 18(1) and 18(3)
AppellantMonthly Rated Workmen of Peiree Leslie and Co. Ltd.
RespondentThe Labour Commissioner and the Chief Conciliation Officer and ors.
Appellant Advocate T.C.N. Menon,; K.R. Panicker and; T.N. Hareendran, A
Respondent Advocate Govt. Pleader (for Nos. 1 to 3),; P.K. Kurien,; V. Desik
DispositionPetition dismissed
Cases ReferredTechnological Institute of Textiles v. Its Workmen
Excerpt:
labour and industrial - settlement - article 226 of constitution of india, sections 18, 18 (1) and 18 (3) of industrial disputes act, 1947 and rules 10, 32 and 59 of industrial disputes rules - settlement arrived at under section 18 (3) binding on all workmen of establishment - other employees of establishment not members of union which signed settlement or that they are members of some other union which was not party to settlement - settlement between one union and management binding under section 18 (3) on all employees of establishment. - - limited, are members of the association, and that for a long tome the petitioner was representing the monthly paid employees of the company at their cochin office including willing-don island for the purpose of collective bargaining the.....orderk.k. mathew, j.1. the petitioner -- the cochin commercial employees association is a trade union registered under the indian trade unions act. the petitioner claims that an overwhelming majority of the monthly paid workman employed at the cochin office of the fourth respondent, messrs pierce leslie & co. limited, are members of the association, and that for a long tome the petitioner was representing the monthly paid employees of the company at their cochin office including willing-don island for the purpose of collective bargaining the petitioner stales that there was a settlement, between the fourth respondent and the monthly paid workmen of the cochin office represented by the petitioner, of certain disputes in the year 1961 and that as soon as the period of the settlement was.....
Judgment:
ORDER

K.K. Mathew, J.

1. The petitioner -- The Cochin Commercial Employees Association is a trade union registered under the Indian Trade Unions Act. The petitioner claims that an overwhelming majority of the monthly paid workman employed at the Cochin Office of the Fourth respondent, Messrs Pierce Leslie & Co. Limited, are members of the Association, and that for a long tome the petitioner was representing the monthly paid employees of the Company at their Cochin Office including Willing-don Island for the purpose of collective bargaining The petitioner stales that there was a settlement, between the fourth respondent and the monthly paid workmen of the Cochin office represented by the petitioner, of certain disputes in the year 1961 and that as soon as the period of the settlement was over, a notice WHS served upon the fourth respondent by the petitioner intimating the intention to terminate the settlement, and that thereafter the petitioner had served a charter of demands upon the fourth respondent Company demanding better terms and conditions of service including the revision of existing salary scales and the rate of dearness allowance. As the fourth respondent was not prepared to consider the demands of the petitioner, the petitioner approached the third respondent, the Deputy Labour Officer and Conciliation Officer requesting him to intervene and initiate conciliation proceedings with a view to bring about a satisfactory settlement of the dispute. On 21-4-1964 the fourth respondent sent a letter to the petitioner informing if that the fourth respondent has authorised the West Coast Employers Federation, of which the fourth respondent was a member to represent it in the negotiation. The petitioner alleges that in the meanwhile the fourth respondent carried on negotiations with the Mercantile Employees Association, Calicut, a registered trade union consisting of the employees of the fourth respondent Company employed in Calicut and other places as its members On the 13th May 1964 the petitioner wrote a letter to the first respondent, the Labour Commissioner and the Chief Conciliation Officer, for the State of Kerala, requesting him not to be party to any settlement that the fourth respondent may enter into with any Union other than the petitioner. A copy of this letter was for WARDED TO The fourth respondent

2. On 23-7-1964 the third respondent issued a notice under Section 12 of thee Indus trial Disputes Act 1947. declaring his intention to commence conciliation proceedings to settle the dispute between the fourth respondent and the monthly paid employees of the fourth respondent represented by the petitioner and proposing to hold a joint conference on 31-7-1904 in respect of the dispute relating to the bonus for the year 1963-64. The fourth respondent raised certain objections to the third respondent initialing conciliation proceedings The third respondent thereafter did not hold any conciliation conference as intimated by him.

3. As the third respondent did not move further in the matter the petitioner served a notice of strike on the fourth respondent Ext P 12 is a copy of the letter intimating the first respondent about it. On 3-10-1964 the first respondent issued notices to the fourth respondent the petitioner and the Mercantile Employees Association intimating them his intention to hold a conference of the parties regarding the demands of the petitioner in respect of bonus, revision of wages, dearness allowance, etc The representatives of the fourth respondent and the petitioner were present on 19th October 1961 at the office of the first respondent in pursuance to the notices But the conference was postponed to a subsequent dale. On 24-10-1964 the first respondent issued another notice fixing a conference on 18-11 1964 al Alwaye But on 18-11 -19(34 the petitioner received a telegram purporting to have been sent b the first respondent cancelling the conference.

4. The petitioner alleged in the affidavit in support of the writ petition that the fourth respondent is going to enter into a settlement with the Mercantile Employees Association, Calicut, in respect of the demands that the fourth respondent is attempting to get the settlement endorsed by the first respondent or respondents 2 and 3 so that the said settlement may be made binding upon the monthly paid employees of the fourth respondent Company employed in the Cochin Office, and that that is unauthorised and illegal.

5. When the writ petition was filed the prayer of the petitioner was to restrain the respondents from entering into any settlement with the Mercantile Employees Association as that Association had no capacity to represent the monthly paid employees of the establishments if the fourth respondent Company. But before any interim order could be issued from this court, Exs P-17 and R-7 settlements had already been entered into by the fourth respondent with the Mercantile Employees Association So the prayer in the writ petition became infruciuous The petitioner therefore filed an Additional affidavit challenging the validity of the settlements on several grounds and praying for a declaration that the settlements are in-valid in law and are not binding on the petitioner

6. The main challenge to the validity of he settlements was that they were entered into with M Union having no capacity to represent the monthly paid employees in the Cochin Office and that the settlements arrived at with such a Union cannot bind the petitioner, which atone represents the majority of the monthly paid employees in the Cochin office of the Fourth respondent. It is alleged that the first respondent' deliberately failed to inform the petitioner about the terms of the settlements which were going to be signed, that the failure to intimate the petitioner about the progress if the conciliation proceedings held by him has resulted in violation of the principles of natural justice that the cancellation of the conference that was proposed to be held on 18-11-1964 by Ex P-16 telegram was arbitrary as the petitioner was ready and willing to participate in the conciliation proceedings, and that the set dements did not cover all the items specified by the petitioner in its charier of demands.

7. Counter affidavits have been filed on behalf of the fourth respondent and the first respondent. Labour Commissioner and Chief Conciliation Officer. In the counter affidavit filed on behalf of the fourth respondent it is stated that the Mercantile Employees Association. Calicut, had on its membership the majority of the clerical and the subordinate staff employed by the Company in its various brandies and factories throughout Kerala, Madras and Mysore States, that the petitioner only represents certain of these employees in the Cochin branch of the company, that the Mercantile Employees Association has always been recognised as the representative organisation of the monthly paid employees of the Company as laid down in the Code of Discipline in Industry evolved of the 16th session of the All India Labour Conference, a tripartite conference consisting of the representatives of the employees, the employers, and the Government, that in the past negotiations had been held between the fourth respondent and the Mercantile Employees Association and settlements arrived at in respect of outstanding disputes, that the petitioner had always recognised the status of the Mercantile Employees Association to represent the monthly paid employees of the fourth respondent Company in those settlements, that the petitioner was estopped from contending that the Mercantile Employees Association has no representative capacity to represent the monthly paid employees of the Cochin Office also, that the Code of Discipline which provides that where there are several Unions the one which has the largest membership should be recognised as having the representative capacity for the purpose of collective bargaining has been agreed to as binding on the petitioner, and that therefore the settlements arrived at with the Mercantile Employees Association would bind the petitioner as well. It is stated that the fourth respondent had written a letter on the 2-8-1961 to the third respondent stating that the fourth respondent had accorded recognition to the Mercantile Employees Association as the representative organ of the monthly paid staff employed in its various office in India, that from March the petitioner was aware of the fact that the Mercantile Employees Association was recognised by the fourth respondent us the Union competent to represent the monthly paid employees of the company, that when the question of bonus for 1861-02 due to the monthly paid employees of the Company was settled with the Mercantile Employees Association the petitioner raised a dispute in respect of it and the Government referred the, dispute to the Industrial Tribunal, that the fourth respondent in order to make the position clear addressed a letter on the 27th June 1964 to the first respondent requesting him to make arrangements for declaring which of the Unions has the representative character 'for the purpose of negotiation and collective bargaining in matters of common interest, that a verification was made by the Deputy Registrar of Trade Unions. Kerala that as a result of the verification the Deputy Registrar of Trade Unions came to the conclusion that out of the 699 employees as on 1-8-1964. 451 were members of the Mercantile Employees Association and that only 136 were members of the Cochin Commercial employees Association. It is further staled that on the basis of the verification the fourth respondent wrote a letter on 17-11 1964 to the General Secretary. Mercantile Employees Association. Calicut, slating that that Association has been recognised by the fourth respondent as the representative organ of the monthly paid staff of the Company under the Code of Discipline in the Industry and that if was on account of this that the first respondent cancelled the conference fixed by him to be held on 18-11-1964 It is also alleged that a conciliation conference was fixed by the first respondent to be held at Kottayam on the 21sl November 1964. and that the two settlements were signed before him by the fourth respondent and the Mercantile Employees Association, one relating to the salaries and other terms and conditions of service (Ext. P-17) and the other relating to the bonus (Ext. K-7). In substance therefore the contention of the fourth respondent is that under the Code of Discipline in the industry the Mercantile Employees Association is the representative organ of the monthly paid employees of the fourth respondent company and a settlement arrived at with it was binding upon the petitioner under Section 18(3) of the Industrial Disputes Act, 1947

8. In the counter-affidavit filed by the Labour Commissioner and Chief Conciliation Officer be has staled that there was a dispute between the Cochin Commercial Employees Association and the Mercantile Employees Association as regards the capacity of each to represent the monthly paid employees of the fourth respondent Company, that on verification the Mercantile Employees Association was found to have on its membership a larger number of monthly paid employees of the fourth respondent company, that therefore that Association was 'recognised as the representative urgan of the monthly paid 'employees of the company for the purpose of collective bargaining that when the petitioner issued the notice if strike on 7-9-1964 to the Management threatening to stop work within fifteen days of the receipt of the notice he look up the matter and initiated conciliation proceedings and by notice dated 3-10-1964 invited the parties for a conference on 19-10-1964 and by another notice for a conference on 18-11-1964. that the conference fixed on 18-11-1964 was cancelled because by that lime the verification of the membership of the two Unions was over and it was found that. The Mercantile Employees Association alone could validly represent the monthly paid employees of the fourth respondent, that the dispute between the parties was settled on 21 11 64 at Kollayam. that the terms of the settlements are fair and reasonable and that the settlements have come into operation

9. Mr. Balagangadhara Meiion, appearing for the first respondent, submitted that the prayer in the amended writ petition is is only for a declaration that the settlements arrived at are not binding on the petitioner, that such a declaration can be granted only in exceptional circumstances and that this is not a fit case where the court should grant a declaration in the exercise of its discretionary jurisdiction under Article 220. In support of the contention that a declaration cap be made only sparingly, cautiously and with the almost circumspection, he has referred me to certain rulings. It is not necessary to refer to those rulings. It is not disputed that this court has jurisdiction under Article 226 to make a declaration in an appropriate case. The only question to be considered is whether this is a fit case for granting a declaration

10. In Pyx Granite Co. Ltd. v. Ministry of Mousing and Local Govt., 1958-1 Q. B. 554. at p. 571 Lord Denning said :

If a substantial question exists, which one person has a real interest to raise, arid the other to oppose then the Court has a discretion to resolve it by a declaration which it will exercise if there is good reason for so doing.

Although this dictum may be a little broad it points to the road ahead. I do not see why the jurisdiction of this court under Article 226 can not be availed of For making it declaration in an appropriate case notwithstanding the dictum in Employees in Caltex (India) Ltd. v. Commr. of Labour, (1959)) Lab L.I .120 at p. 525 (AIR 1959 Mad 441. at P. 444).

11. A conciliation officer performs an administrative function in conciliating a dispute A conciliation proceeding is not a quasi-judicial proceeding, see 1959-1 Lab LJ 520 (AIR 1959 Mad 441.

12. Mr. P. K. Kureien appearing for the fourth respondent, argued that a declaration can be granted only in respect of the binding character or otherwise of a quasi-judicial decision and that no declaration will be made about the validity or otherwise of an administrative proceeding. I do not think so. It is open to the court to grant a declaration that an administrative act or order, is invalid on the ground of want of jurisdiction or for other reasons. The ground alleged by the petitioner for challeng ing the validity of the settlements is not that there was no jurisdiction for the first respondent to initiate conciliation proceedings or right for the parties to enter into a settlement but that the Union with which the settlements were entered into had no capacity to represent the monthly paid employees of the Cochin Office of the fourth respondent Company and that, in any event, since the petitioner was not a party to the settlements, the settlements were bad.

13. The question which I am asked to decide is whether the Mercantile Employees Association has the capacity to represent the monthly paid employees of the fourth respondent and whether the settlements entered into with it would bind I hi; petitioner under Section 18(3) of the Industrial Disputes Ac I. That question, I think, can be decided in this proceedings on the basis of the affidavits and the documents produced Therefore. I do not think that I can dismiss tin's writ petition on the sole ground that no declaration can be granted in the circumstances of this case The remedy by was of a declaration is not hedged in by the restrictions which surround a writ of certiorari or mandamus As there is a substantial dispute between the parties as regards the binding character of the settlements it may not only he proper but expedient in the interests of justice that, that dispute should lie resolved by this court as there is no serious controversy in respect of the facts In Thomas v Industrial Tribunal. 1961 Ker LT 223 (AIR 1961 Ker 265) this court granted a declaration in circum-stances analogous to the present one I, there fore, propose to examine the case on its merits

14. It is deal from the records that the third respondent had issued notices about the conciliation proceedings proposed by him on the basis of the charter of demands submitted by the petitioner. But that proceeding did not fructify for the reason that it was found that the petitioner could not represent the monthly paid employees of the fourth respondent Company for the purpose of collective bargaining. The Mercantile Employees Association had sent a charier of demands evidenced by Ex. R-8 (a) on 2-3-1964 to the General Manager of the fourth respondent Company. The charter of demands by the petitioner is evidenced by Ex. P-1 and was sent on 28-3-1964. It was while the third respondent was attempting to conciliate on the demands raised by the petitioner, that Ex. R-4 letter dated 27-6-1964 was sent by the fourth respondent to the first respondent stating that as there is rivalry between the petitioner and the Mercantile Employees Association for recognition as the representative organ of the monthly paid employees of the Company, the question as to which of them is the representative organ of the monthly paid employees of the Company, the question as to which of them is the representative organ for the purpose of negotiation on matters like bonds which depends upon the trading result of the Company as a whole terms and conditions of service common to all monthly paid employees of the various branches of the fourth respondent company, and other matters common to them, may be decided Ex. R-9 is a letter dated 27-7-19(14 sent by the fourth respondent to the third respondent slating that until that question is decided the conciliation proceedings started by him may be slopped The result of the verification made by the Deputy Registrar of Trade Unions is embodied in Ex. R-5 (a). In the concluding paragraph of Ex K-5 (a) it is stated

' In the result I find that the majority Union functioning among the staff members employed in the Head Office and the various branches of M/s. Peirce Leslie & Co., Ltd., is the Mercantile Employees Association with a Membership of 451 The Cochin Commercial Employees' Association has 185 members from the staff employed by the Peirce Leslie & Co. Ltd. hi other words 64 per cent of staff are members of the Mercantile Employees' Association, Calicut, and 19 per cent members of the Cochin Commercial Employees' Association. '

It was on the basis of Ex R 5 (a) that the 4th respondent recognised the Mercantile Employees Association as the Union representing the majority of the monthly paid employees for the purpose of collective bargaining The third respondent did not proceed further with the conciliation proceedings, as it was found that the petitioner had mi representative character The first respondent also cancelled the confer once proposed to be held on 18-11 1964 for that reason Thereafter. Exs. P 17 and R-7 settlements were entered into at Kottayam on 21 It-1964 between the fourth respondent and the Mercantile Employees Association

15. On a perusal of Exs. P-1 and K-8 (a) it will be found that most of the demands put forward by the two Unions are identical in character. No doubt, there is one demand raised by the petitioner which relates exclusively to the monthly paid employees of the Cochin brunch of the fourth respondent. So the question for decision in this case is, when two rival Unions have put forward practically identical demands and the management enters into a bona fide settlement with one of them on the basis that it represents the majority of the staff concerned in the dispute, whether such a settlement would be binding on the other Union and the workmen of the establishment or establishments. It was argued on behalf of the petitioner that this rule that the Union having a majority of workmen concerned in the dispute should alone be, recognised as the Union competent to represent the workmen for the purpose of collective bargaining has not been accepted by the industrial law of this country, and therefore, it was necessary especially when one of the demands made by the petitioner related exclusively to the monthly paid staff of the Cochin branch that the petitioner should also have been made a party to the conciliation proceedings and that if also should have signed the settlements in order that they may bind the monthly paid employees of the Cochin office. In support of the contention that a Union having a majority of the workmen concerned in the dispute was not competent to enter into a settlement binding on all the workmen of the establishment or establishments. Mr. T C. N. Menon referred me to A. C. C. Ltd., v. Their Workmen (1960-1 Lab LJ 491 : (AIR 1960 SC 777). The question for consideration in that case was whether a registered Trade Union representing a minority of workmen could validly give a notice to the other party intimating its intention to terminate an award under Section 18(3) of the industrial Disputes Act. Act 14 of 1947. At p. 495. (of Lab LJ) : (at p.p. 780-781 of AIR the Supreme Court observed :

' That takes us to the question as to whether, the expression 'any party bound by the award must mean a Union representing the majority of the workmen bound by it or a group of the workmen constituting such majority acting otherwise than through the Union. The expression 'any party bound by the award' obviously refers to and includes, all persons bound by the award under Section 18. The learned Attorney-General has urged before us that we should construe Section 19(6) so as to preclude a minority of workmen hound by the award from disturbing the smooth working of the award. and thereby creating an industrial dispute The policy of the Act, therefore, appears to be that the smooth working of the award even after the prescribed statutory period should not be disturbed unless the majority of the workmen bound by it feel that it should be terminal-ed and fresh demands should be made . . - As we have already indicated, the class of employees bound by the award under Section 18 is very much wider than the parties to the industrial dispute in which the award is made; the said class includes not only all the persons employed in the establishment at the date of the award but it covers even the subsequent employees in the said establishment. It is, therefore, obvious that if the majority rule is adopted, very few awards, if any, could be terminated, because very few unions would be able to claim a majority of members on their rolls, and in their present stage of organisation in very few cases would a majority of workmen be able to meet, decide and act together otherwise than through their unions. That is why the majority rule would very seriously prejudice the rights of employees to terminatate the award when they feel that they need to be modified or changed. '

The Supreme Court came to the conclusion that a minority of the workmen could validly issue a notice intimating the intention to terminate the award. It was contended that if a minority of workmen could issue the notice intimating their intention to terminate an award, there was no reason why a union consisting only of a minority of workmen should not be recognised as competent to enter into a settlement. The efftect of the ruling has been nullified by the amendment to Section 19 of the. Industrial Disputes Act by adding Sub-clause (7) wherein it is stated that a party representing the majority of workmen alone can issue the notice intimating the intention to terminate an award. Section 19(7) is as follows :

' (7). No notice given under Sub-section (2) or Sub-section (6) shall have eil'ecl unless il is given by a party representing the majority of persons bound by the settlement or award, as the case may be. '

Besides, the observations of the Supreme Court above referred to have no direct bearing on the question now under consideration. That question has necessarily to be decided on a consideration of the object and scope of the relevanl provision of the Industrial Disputes Act.

16. Section 18 (1) to (3) of the Indus trial Disputes Act reads .

' 18 (1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties in the agreement.

(2) Subject to the provisions of Sub-section (3) an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration

(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 issued under Sub-section (3-A) of Section 10A. or an award of a Labour Court. Tribunal or National Tribunal which has become enforceable shall he 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 Arbitrator. 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 clause (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 clause (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. '

It is clear from Section 18(3) that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceedings shall be binding on the parties to the agreement, whereas Section 18(3) provides that a settlement arrived at in the course of conciliation proceedings which has become enforceable shall be binding on all the parties specified in clauses (a) to (d) thereunder. Section 18(3)(d) makes it clear that where a party referred to in clauses (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 became employed in the establishment or party would he bound by the settlement. Therefore, it is clear that if a settlement is arrived at under Section 18(3) it wilt be binding on all the workmen of the establishment If that be so, what is the effect of a settlement entered into by the management with one of the unions representing the majority of the workmen employed by the management and concerned in the dispute Would that settlement bind the other union and the workmen of the establishment ?

17. This aspect of the question came up for consideration in Workers of B. & C, Co. v. Commr. of Labour, 1964-1 Lab LJ 253 : (AIR 1964 Mad 538) The point for consideration in that case was whether ' the employees' union '', the petitioner in that case was competent to raise an industrial dispute in respect of a matter which was settled by a concliation settlement by the management with another union recognised by the management. At p. 262 (of Lab LJ) :(at p. 542 of AIR), the Court said :

' To sum up, a defined department in industrial establishments may have a union of its own. Each union will perhaps be competent to raise an industrial dispute on behalf of their members if they are sufficiently large. There is nothing to prevent a management from negotiating with them A conciliator loo might help in that process. But at the same time a management will not be bound to recognise any union which has not a majority of its employees on its rolls. It can, for its purpose of collective bargaining, recognise a union which has a majority of its employees. It cannot obviously recognise a union which has only a minority of the total number of Us employees, which might even be a majority in any single department. In accept such a principle would give room for abuse and lead to inconvenient results; when, therefore, it negotiates with the recognised union and so long as negotiations for settlement are conducted bona fide, there is nothing which would invalidate a settlement when it has been done through the conciliation proceedings.' After referring to the decision in Ramnagar Cane and Sugar Co. Ltd., v. Jatin Chakravarty, 1961-l Lab LJ 244 : (AIR 1960 SC 1012). the learned Judges came to the conclusion that it was open to the management to enter into a settlement with the union representing the majority of workmen and that such a settlement will bind the other union. The learned Judges expressed dissent from the view taken by Veeraswami, J., in Tiruchi Srirangam Transport v. Industrial Tribunal 1962-1 Lab LJ 94 : (AIR 1963 Mad 79), that where there are two identical industrial disputes, which formed the subject matter of conciliation before the same conciliation Officer, there was nothing in the Industrial Disputes Act to hold that the settlement readied in the course of the conciliation between the management and one set of workers and their union would automatically bring to an end the conciliation pending with reference to the other, but identical dispute, before the same officer. Practically the same question came up for consideration in 1961-1 Lab LJ 244 : (AIR I960 SO 1012). and the Supreme Court said ' In other_ words, then can be no doubt that the settlement arrived at between the appellant and the employees' union during the course of conciliation proceedings on 25th February 1954, would bind not only the members of the said union but all workmen employed in the establishment of the appellant at that dats That inevitably means that the respondents would be bound by the said settlement even though they may belong to the rival union in order to bind the workmen it is not necessary to show that the said workmen belong to the union which was a party to the dispute before conciliator. The whole policy of Section 18 appears to be to give an extended operation to the settlement arrived at in the course of conciliation proceedings and that is the object with which the four categories of persons hound by such settlement are specified in Section 18. Sub-section (3) '

In Erumeh Estate v Industrial Tribunal 1962-2 Lab LJ 144 (Ker). Vaidialingam. J., had to consider the question The workmen in an establishment were members of three unions. Some of the workmen represented by one of the Unions raised certain demands Subsequently another set of workmen acting through another union raised the same demands in the course of conciliation proceedings in respect of the demands raised by the second union the parties arrived at a settlement under the terms of which the union agreed to give up the particular demand In the conciliation conference the workmen who were the members of the other two unions were not represented. They were not parties to the settlement, in the sense that I he unions representing them did not sign the settlement Subsequently the Slate Government referred the demands for adjudication at the Instance of the workmen represented by the unions which were not parties to the settlement. The Industrial Tribunal overruled the contention advanced on behalf of the employer that the settlement was binding on all the workmen of the establishment under Section 10(3) of the Industrial Disputes Act and passed an award on merits. The award was challenged before this court. The learned Judge held that the settlement in question being a settlement arrived at in the course of conciliation proceedings was binding on all workmen in the establishment and hence the reference in respect of the demands covered by the settlement was bad. He also held that a conciliation settlement in respect of common matters pertaining I he employees of the establishment. Though settled between one union and the management, will be binding under Section 18(3) on all the employees of the establishment irrespective of the fact whether the other employees of the establishment are not members of the union which signed the settlement or that they are members of some other union which was not a party to the settlement.

18. As I have already said the charters of demands (Exts. P-1 and P-8 (a)) cover practically the same grounds except in one respect, namely the item of demand made by the petitioner which relates exclusively to the monthly paid employees of the Cochin branch including Willington Island. In respect of that demand the settlement (Ex. P-17) may not operate as a bar to the petitioner raising an industrial dispute. Ex. P-17 settlement states:

' The remaining demands raised by the Association and not specifically dealt with are not pressed ...

X X X Xit is agreed that during the operation of this settlement no demands involving financial commitment excepting the question of bonus will be raised by the staff. '

It was argued on behalf of the petitioner that the clause slating that the other demands are not pressed would show that there was no conciliation in respect of those demands and therefore it is open to the petitioner to raise a fresh industrial dispute in respect of those demands and that the further statement in Ex. P-17 that during the period of the operation of the settlement no fresh demand involving financial commitment on the part of the fourth respondent would be made cannot be binding on the petitioner. To support this contention, Mr. T. C. N. Menon relied on the decision of the Supreme Court in Technological Institute of Textiles v. Its Workmen, 1965-2 Lab LJ 149 (SC). The question which arose for consideration in the case was whether the industrial tribunal had jurisdiction to consider certain items of demands as those Hems have been settled by a conciliation settlement and also by an award. The Supreme Court held that since the items of demands were not pressed in the settlement and before the industrial tribunal which passed the award, there was no bar to the tribunal considering the demands afresh on merits and entering its findings The Supreme Court said :

' It is manifest in the present ease that there has been no adjudication on merits by the industrial tribunal in the previous reference with regard to the matters covered by items (1) and (3) of the present reference, because the workmen had withdrawn those mailers from the purview of the dispute. There was also no settlement in Ex. K-4 because the demands in question bad been withdrawn by the workmen and there was no agreement between the parties in regard thereto. Our conclusion, therefore, is that, the bar of Section 19 of the Industrial Disputes Act docs not operate with regard to the matters covered by items (1) and (3) of the present) reference and the argument put forward by the appellant on this aspect of the ease must be rejected.'

19. Without knowing the circumstances under which the demands were not pressed it may not be possible to say that the demands were not conciliated upon and then given upas. a result of negotiation and mature consideration. In it conciliation proceeding the workmen may make a demand, say. in respect of ten items. As a result of negotiation will) the management and in consideration of the management agreeing to eight of them the workmen may choose to withdraw or not press I heir demand in respect of the remaining items. Thai does not mean that this remaining items were not pressed by them in the sense that the parties did not consider the merits of those items. It is really a question of give and lake. It cannot be said that there was no conciliation in respect of the items not pressed. The approach to the question must be realist. From the mere statement in Ex P-17 that the ' remaining demands raised by the Association and not specifically dealt with arc not pressed', an inference cannot be drawn that those demands did not also form the subject matter of conciliation or that they were not considered on their merits by the parties. It might be that these items were not pressed in consideration of the management agreeing to accept the rest of the demands In the absence of any evidence us to the circumstances under which the demands were given up. I cannot say that in respect of those demands Ex. P-17 settlement is not binding on the petitioner and that it is open to the petitioner (o raise an industrial dispute regarding those demands.

20-21. Mr. T. O. N. Menon argued that the petitioner alone was competent o enter into a settlement as regards the demand which related exclusively to the monthly paid employees of the Cochin Office. It was submitted by Mr. Balagangadhar Menon. on behalf of the first respondent, and Mr. P. K. Kurien, on behalf of the fourth respondent, that Ex. P-17 settlement would not operate as a bar to the demand which relates exclusively to the monthly paid employees of the Cochin branch including Willingdon Island from being conciliated upon, and a fresh settlement entered into in respect of that demand. Therefore this circumstance would not prevent the settlements from being binding upon the petitioner in respect of the other demands.

22. Mr. T. C. N. Menon submitted that there was no conciliation by the first respondent as no notice of the conciliation proceedings has been issued to the Mercantile employees Association and that the formalities prescribed by the rules tinder the Industrial Disputes Act have not been complied with. Even assuming that no formal notice was issued that would not in the circumstances of the case, detract from the binding character of thee settlement under Section 18(3). II was submitted that Rules 10, 32 and 59 of the rules framed under the Industrial Disputes Act were violated and therefore the settlements are not binding There is no allegation in the petition as to how these rules were violated In the absence of necessary particulars it is not possible for the court to make any pronouncement upon the question.

23. I dismiss the petition, but without any order as to costs.


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