T.K. Basu, J.
1. The petitioner Anglo India Jute Mills Company, Limited is a company (Contd. on Col. 2)incorporated under the Indian Companies Act, 1913 having its registered office at No. 31, Netaji Subhas Road, Calcutta.
2. At all material times prior to March, 1963, the petitioner used to work its preparing and spinning departments and all its other departments except its weaving and finishing departments in its Lower Mill for three shifts per day. The weaving and finishing departments, however, used to work only two shifts per day.
3. Prior to May, 1961, the petitioner's maximum demand of electric power from the Calcutta Electric Supply Corporation was 3,600 K. W. Owing to an acute shortage of power in Calcutta and its industrial area, the petitioner's maximum demand was frozen by the said Corporation in or about May, 1961 to 3,480 K.W. In July 1962, the petitioner was cautioned by the said Corporation not to exceed the said maximum demand. In May, 1963, the maximum permissible demand was further reduced to 3,355 K.W.
4. In order to keep within the maximum permissible demand for power without reducing production, the petitioner decided to revise its working hours in the weaving department of its Lower Mill and to introduce a third shift being the night shift in the said department.
5. Thereupon the weavers of the petitioner's Lower Mill went on strike from the 15th March, 1963 and conciliation proceedings took place in the course of which a settlement was reached and a Memorandum of Settlement was signed on the 19th March, 1963.
6. This Memorandum of Settlement is very material for our purposes and is set out hereinbelow:
MEMORANDUM OF SETTLEMENT 1.Name of Parties :M/s. Anglo-India Jute Mills Ltd. (Lower), Jagatdal, 24-Parganas, and Their workmen represented by - 1.National Union of Jute Workers, 2.Anglo-India Jute Mills Employees Union.2.Representing Employer :Shri A. B. Guha, Asstt. Labour Adviser Anglo-India Jute Mills Co. Ltd.3.Representing workmen :1.Shri Dayaram Beri, M. L. A. 2.Shri Bishnu Banerjee, 3.Shri Jagdish Ch. Chakravarty of National Union of Jute Workers. 4.Mohd. Rostam Ali, 5.Shri J. Pandey and others of Anglo-India Jute Mills Employees' Union.4.Short recital of the case :
As the frozen maximum demand of powerSanctioned by the Calcutta Electric Supply Corporation wasbeing exceeded in the mills and the Management was cautioned by the Corporation, theCompany revised the working hours of the Weaving Department in the LowerMills in order to keep the power within the limit of the maximumdemand. This revised working hours involved introduction of 3 shifts with effect from 15-3-1963. Theweavers raised a dispute alleging that the Management has violated theSection 9(a) of the I. D. Act, as due notice was not given and refrained from attending to their duties.
Bipartite discussion between the Management's representatives and the workers' representativesproved fruitless. Ultimately tripartite discussions were held before theundersigned on 18-3-1963 and 19-3-1963 respectively and after protracted discussionthe following terms of settlement is agreed upon :
5.Terms of settlement :(a)The workmen concerned hereby agree to work in 3 shifts as notified by the Management intheir notice D/- 12-3-63 with immediate effect, subject to the modification that the night shift work will consist of 46 hours a week and the said notice willstand modified accordingly.
(b)In view of the above the management hereby agree to offer thefollowing to the workmen concerned.
1.Old and efficient Budlis in theWeaving Department who are members o Provident Fund will be made permanent within 30-4-1964.
2.The Budlis on the frozen list of the Weaving Department will be given employment inpreference over Budlis so that they get opportunity to qualify for Provident Fund.
3.Any permanent weaver declared medically unfit by the Company's MedicalOfficer and unable to work in the night shift will be paid retrenchmentcompensation upto and including 1948. This will remain in force for a period of three monthsfrom date.
4.These workers of the Weaving Department who will work inthe night shift will be paid full dearness allowance for 48 hours instead of 46 hours and also 2 hours basic wages.
5.The Management will examine piece-rate paid to weavers operatingsemi-wide looms.
6.In view of the fact that Weavers of this mill have notworked in the night shift before, the Management hereby agrees to keep this factor in view in assessingtheir production.
7.The position regarding power supply necessitating the introductionof 3rd shift as explained by the Management will beverified by the Conciliation Officer in due course.
8.The 3rd shift in the Weaving Department will rotate every two weeks as in other Departments.
9.It is agreed that no precipitated action shall be resorted to in future and everyattempt will be made to settle differences and dispute through constitutional means.Sd./- A.B. GuhaSd./- Dayaram Beri, M. L. A.Signature of the representatives of the Employer.Sd./- Bishnu Banerjee, 19-3-1963.19-3-1963.Signatures of the Representatives of the Union.Sd./- L. O. I. J. M. A. witnessSd./- Jagdish Ch. Chakravorty19-3-1963.Sd./- Md. Rostam Ali Sd./- J. Pandey. 19-3-1963 Sd./- Serajuddin AssinSd./- Bahma ProsadSd./-Sd./- in HindiSd./-Sd./- in HindiSd./- H. M. GhoshSd./- Larma Singh.Conciliation Officer. 19-3-1963.
7. The effect of the settlement was that the petitioner's workmen agreed to work in three shifts in consideration of various benefits of a permanent nature granted by the petitioner to its. workmen, as well as in consideration of the petitioner agreeing that work in the night shift should be of 46 hours per week instead of 48 hours and that full dear-ness allowance for 48 hours should be paid to the workmen working in such shift and that payments of basic wages should be made for two extra hours. It was also agreed that the said shifts should rotate every two weeks, so that each weaver worked in the night shift for two weeks every six weeks.
8. It is the case of the petitioner that it duly gave effect to the said settlement and the workmen enjoyed the benefits conferred thereby.
9. Thereafter the petitioner's workmen in or about September, 1961, demanded the abolition of the night shift. The petitioner, however, resisted such demand.
10. By an order of Reference dated the 1st April, 1965 the following dispute was re-forced to the Fifth Industrial Tribunal by the Government of West Bengal for adjudication:
'Whether the workmen of the Weaving Department are justified in demanding abolition of the night shift (3rd shift) If so, what relief, if any, the workmen are entitled to?'
11. The parties thereafter submitted their respective written statements before the Tribunal. The Tribunal made its Award on the 26th May, 1966, which was published in the Calcutta Gazette dated the 16th June, 1966. The concluding portion of the Award is in the following terms:
'The Company in the opinion of the Tribunal, has not succeeded in justifying working of three shifts in the lower mills. The Tribunal is also of opinion that the workmen have established that their demand for abolition of the night shift in the Weaving Section of the lower mills is just. The question that remains to be considered is to what relief the workmen, i.e., the weavers of the Weaving Department of the lower mills are entitled. They cannot certainly ask the Company to stop working of the night shift altogether, What they can demand and get is that they should not be made to work in the night shift. They should be allowed to work in two shifts as before 1983 with no less in earnings they were having at that time.
In the result, the Tribunal answers the first part of the issue under reference in the positive, and directs that the workmen of the Weaving Department of the lower mills of Messrs. Anglow India Jute Mills Co. Ltd., should not be asked or made to work in the night shift of the said mills.'
12. It is this Award of the Fifth Industrial Tribunal which is challenged before me in this application.
13. Mr. P. P. Ginwala appearing on behalf of the petitioner submitted in the first place that as there was a binding settlement between the parties, arrived at in course of the conciliation and covering the subject-matter of the dispute which has been referred to the Fifth Industrial Tribunal in the present case, the Order of Reference itself was incompetent. My attention is drawn in this connection to the provisions of Section 19(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) which provides as follows:
(1) 'A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute.
(2) Such settlements 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 an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement.'
14. Reference is made by Mr. Ginwalla to the Memorandum of Settlement which I have set out hereinabove to show that it is signed by all the parties and the Conciliation Officer and it covers the entire subject matter ofthe dispute in the present case. That Memorandum of Settlement admittedly has not been terminated by any formal notice in Writing.
15. The observations of the Tribunal with regard to this contention may be noted in this connection. At paragraph 6 of the Award the Tribunal observes as follows :
'It was next contended that the question referred for adjudication cannot be decided inasmuch as the settlement, Ext. 1, arrived at between the Company and the Union has not been terminated in accordance with Section 19 of the Industrial Disputes Act. It is quite clear from the correspondences that have been made since after the introduction of the night shift between the Union and the Company and the Labour Commissioner that the Union had terminated the said settlement. It is no doubt proved that a notice in writing of an intention of the Union to terminate the settlement has not been given to the Company, but it appears from the several letters, Exts. 2, 2 (a), 2 (b), 3, 4 and 5 that the intention of the Union to terminate the settlement is crystal clear . . . . . . The Tribunal decidesthat the settlement had been terminated and that there is no bar under Section 19 to go into the question.'
16. Mr. Ginwalla next refers to the correspondence which was referred to by the Tribunal in its Award and which is to be found at pages 115 to 118 of Annexures to the petition. Out of these, two letters dated the 20th February 1965 and 6th October, 1964 are letters addressed by the Secretary of the Union to the Labour Commissioner and Assistant Labour Commissioner, Government of West Bengal respectively. In the letter dated the 6th October, 1964 after setting out their various grievances the Joint Secretary writes as follows :
'Under the circumstances stated above we request you to be so good as to arrange for a conciliation at your earliest convenience. We apprehended that the Industrial scheme may come into a dangerous position at any moment.'
17. A copy of this letter, it appears, was sent to the Manager, Lower Mill. The third letter dated the 26th December, 1964 was addressed by the Secretary of the Union to the Manager of the Mills, and in its second paragraph states as follows :
'So we have decided to give you clear two weeks ultimatum within which to settle up the matter failing which there will be stay in strike in the Lower Weaving Dept.'
18. At this stage, it is necessary to notice two decisions of the Supreme Court which were cited before me. The first decision to be noticed is the case of Workmen of Western India Match Co. Ltd. v. Western India Match Co. Ltd., : (1962)ILLJ660SC . At paragraph 12 of the report, Mudholkar J. observed as follows:
'Mr. B Sen for the respondent-company reiterates the objection based on Section 19(2) of the Industrial Disputes Act, 1947, That provision is to the effect that a settlement arrived at between the employer and the employees shall be binding for such period as is agreed upon by them and if no such period is agreed upon, for a period of six months from the date of the settlement and shall continue to be binding on them after expiry of that period until the expiry of two months from the date on which a notice in writing of his intention to terminate the settlement is given by one of the parties to the other party. Unquestionably the parties had arrived at a settlement on April 29, 1955 relating, amongst other things, to dearness allowance and the scales of pay and no formal notice as contemplated by Sub-section (2) of Section 19 was given. In our opinion, however, it is not open to the respondent-company to raise this contention in so far as revision of pay scales is concerned because in the memorandum of settlement dated May 23, 1958 signed by the representatives of the parties to this appeal it is clearly provided that the revision of scale of pay be referred for adjudication to the same Industrial Tribunal which was dealing with the question of dearness allowance. Besides that, this memorandum contains the following recital:
'Parties were met jointly on several occasions as a result of which the entire dispute, except the issues of (1) Dearness allowance (which has already been referred to the Fourth Industrial Tribunal for adjudication) and (2) Revision of scales of pay, has been settled on the following terms.
This recital shows that the respondent was agreeable to refer to the Tribunal not only the issue relating to revision of pay scales but also that dealing with dearness allowance. Fourthly, in para 37 of its written statement the respondent company clearly accepted the position that the Tribunal had jurisdiction to deal with the issue of dearness allowance. This circumstance precludes the respondent from now objecting to the jurisdiction of the Tribunal. Apart from that we may point out that in its reply dated March 29, 1657 to the charter of demands sent on behalf of the appellant union it was stated that the previous settlement had not been terminated and in answer to that the General Secretary of the Union wrote on April 8, 1957 saying that the various representations made by the Union to the respondent and the presentation of the charter of demands amounts to a notice of termination of the settlement. Thus, though no formal notice under Section 19(2) was given this letter can itself be construed as notice within the meaning of that provision. It may be noted that the representation was in made long after the expiry of two months from this date. For these reasons we overrule the contention of Mr. Sen.'
19. This decision came up for consideration in a subsequent decision before the Supreme Court in the case of Management of the Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Workmen, : (1968)ILLJ555SC . In that case the earlier decision, was referred to and explained in the following terms:
'We will then consider the question, as to whether there has been a termination o the award, Exhibit M-6, in the manner pleaded by the Union, It cannot be over emphasized that an intimation, claimed to have been given, regarding the termination of an award, must be fixed with reference to a particular date so as to enable a Court to come to the conclusion that the party, giving that intimation, has expressed its intention to terminate the award. Such a certainty regarding date, is absolutely essential, because, the period of two months, after the expiry of which, the award will cease to be binding on the parties, will have to be reckoned, from the date of such clear intimation. It is also necessary to state that, in this case, the High Court and the Tribunal have proceeded on the basis that the decision of this Court, in Workmen of Western India Match Co. Ltd., : (1962)ILLJ660SC supports the proposition that an inference of an intention to terminate an award or a settlement can be gathered from the various correspondence that passed between the Management and the Union. That decision, in our opinion, does not lend any support to such a view. From the facts of that case, it is seen that there was a settlement, between the parties, on April 29, 1955, and there was a Charter of Demands, given by the workmen, on January 25, 1967. On January 14, 1958, the Government of West Bengal, referred to the Industrial Tribunal concerned, for adjudication, the demands made by the workmen. Earlier to that date, on March 29, 1967, the management had sent a reply to the Union that the Charter of Demands, of January 25, 1967, could not be considered, inasmuch as the settlement of April 29, 1955, had not been validly terminated, under the Act. In answer to that communication, the Union wrote, on April 8, 1967, that the various representations made by it, to the Management and the presentation of the Charter of Demands, amounted to a notice of termination of the settlement. In dealing with this point, it will be seen that, this Court observed that no formal notice, as contemplated by Section 19(2), of the Act, has been given by the Union. But, this Court ultimately, held that though no such formal notice was given, the letter of April 8, 1957, written by the Union, could itself be construed as notice within the meaning of Section 19(2) and therefore, the Tribunal had jurisdiction to adjudicate upon the claim, as the reference was made by the State Government, long after the expiry of two months, from April 8,1957. It will therefore be seen, that this Court treated the letter, of April 8, 1957, written by the Union, as amounting to a notice of intention to terminate the settlement.'
20. On the basis of these two decisions Mr. Ginwalla contended that although the earlier decision might have lent support to the view that in the absence of a formal notice of termination, such an intention to terminate could be spelt out from the correspondence, the latter decision of the Supreme Court interprets the earlier decision as having found that an express notice in writing of the intention to terminate the settlement was, in fact, given in the earlier case.
21. Mr. Ajoy Ghose for the State contended that no formal notice was necessary on the strength of the earlier Supreme Court decision.
22. It is not necessary for me to enter into this controversy in the present case as the latter decision seems to be a clear authority for the proposition that the intimation to terminate a settlement whether it is by a formal notice in writing or it is to be spelt out from correspondence must be certain as to the particular date on which such a termination is to take effect. This is vitally necessary because the Court has to fix the period of two months with reference to Section 19(2) of the Act after which the settlement ceases to be binding on the parties.
23. Having gone through the correspondence in the present case I am unable to hold that there has been any such notice of an intention to terminate the Settlement with reference to a particular date given by the Union. In that state of affairs, it must be held that the Tribunal was manifestly in error in overruling this objection on behalf of the Company. It must also be held that since the settlement was valid and binding on the parties the Order of Reference dated the 1st April, 1965, was incompetent and without jurisdiction. Since the Order of Reference is incompetent, the resulting Award must also be held to be without jurisdiction and void.
24. This contention of Mr. Ginwalla, therefore, succeeds.
25. Mr. Ginwalla next submitted that the - arrangement of work of the employees in different shifts is a matter of organisation of the business which should be left entirely to the management. According to this contention, it is incapable of being a 'term of employment' or a 'condition of labour' as used in Section 2(k) of the Act. Consequently, there cannot be an industrial dispute with regard to this question of introduction of night shifts. Mr. Ginwalla in this connection drew my attention to a decision of the Supreme Court in the case of Pfizer Private Ltd., Bombay v. The Workmen, : (1963)ILLJ543SC . Another decision of the Supreme Court was also referred to in the case ofAssociated Cement Staff Union v. Associated Cement Co., : (1964)ILLJ12SC .
26. Having regard to my finding on the question of the competence of Order of Reference, I am not inclined to express any final opinion on this aspect of this matter in this case.
27. In the result, this application succeeds and the Rule is made absolute. There will be a writ in the nature of Certiorari quashing and setting aside the Order of Reference dated the 1st April, 1965 and the Award dated the 26th May 1966, published in the Calcutta Gazette dated the 16th June 1966 and a writ in the nature of Prohibition restraining the respondents from giving effect to the said Order of Reference and the Award in any manner whatsoever.
28. There will be no order as to costs.