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Sri Anthony Gomes Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1974)IILLJ94Cal
AppellantSri Anthony Gomes
RespondentState of West Bengal and ors.
Cases ReferredWorkmen of Delhi Cloth General Mills Ltd. v. The Management
Excerpt:
- .....dismissed from service for any misconduct but he was discharged from his service in terms of the settlement arrived at between the management and the union with the assistance of the conciliation officer. in that view of the matter, the tribunal came to the conclusion that there was no violation of the provision of section 33 as contended by the petitioner. accordingly, the tribunal dismissed the application of the petitioner under section 33a of the act. being aggrieved by the said order of the tribunal, the petitioner has moved this court under article 226 of the constitution challenging the said order.3. on behalf of the petition, it has beer. strenuously urged that there has been violation of the provision of clause (b) of sub-section (2) of section 33 of the act. clause (b).....
Judgment:

Murari Mohan Dutt, J.

1. This Rule is directed against an order of the Fifth Industrial Tribunal, West Bengal under Section 33A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The petitioner was an Inspector in charge of the respondent No. 4, Messrs. Bengal Ingot Co. Ltd. (hereinafter referred to as the company). Act all material times, the petitioner was a leading and active member of the union of the company and was elected as the joint treasurer of the union in the year 1967. On or about October 16, 1967 the company served a charge-sheet upon the petitioner in which it was inter alia said that the charges mentioned in the charge-sheet, if proved, would amount to major misdemeanour according to the standing order of the company. The company appointed an enquiring officer for enquiry into the charges against the petitioner. 'The petitioner did not appear at the said enquiry and defend him against the charges. The enquiry was held ex parte. In the meantime, the union approached the management with a settlement. The petitioner raised an objection to the effect that the union had no jurisdiction to come to a settlement regarding the petitioner. It also appears that the petitioner tendered his resignation as a member of the union. The petitioner referred the dispute regarding him to the Labour Commissioner. On August 31, 1968 with the assistance and the concurrence of the Deputy Labour Commissioner who acted as the Conciliation Officer there was a settlement of the dispute between the management and the workmen represented by the union. The Conciliation Officer signed the written settlement as a witness thereto. In terms of the said settlement the employment of the petitioner ceased with effect from August 31, 1968. He was directed to be given ex gratia and amount equivalent to 40% of his basic wages and clearness allowance for the period from July 1, 1968 to August 31, 1968 together with a month's wages inclusive of dearness allowance as an additional ex gratia payment. It was further provided that the provident fund dues of the petitioner would be settled in accordance with the company's Provident Fund Rules. It may be stated here, that at the time when the settlement was effected a Government order of reference was pending in the Fifth Industrial Tribunal. The company discharged the petitioner from service by virtue of the said settlement. Thereupon, the petitioner made an application before the Tribunal under Section 33A of the Act complaining that the company violated the provision of Section 33 of the Act by dismissing the petitioner from service during the pendency of the reference.

2. The Tribunal came to the finding that the petitioner was not discharged, punished or dismissed from service for any misconduct but he was discharged from his service in terms of the settlement arrived at between the management and the union with the assistance of the Conciliation Officer. In that view of the matter, the Tribunal came to the conclusion that there was no violation of the provision of Section 33 as contended by the petitioner. Accordingly, the Tribunal dismissed the application of the petitioner under Section 33A of the Act. Being aggrieved by the said order of the Tribunal, the petitioner has moved this Court under Article 226 of the Constitution challenging the said order.

3. On behalf of the petition, it has beer. strenuously urged that there has been violation of the provision of Clause (b) of Sub-section (2) of Section 33 of the Act. Clause (b) provides that during the pendency of any proceeding in respect of an industrial dispute, the employ. or may discharge, punish or dismiss a workman for any misconduct not connected with the dispute provided that no such workmen shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. It is contended that the order of the company discharging the petitioner from his service is really an order of dismissal on the ground of misconduct and, as such, the company should have made an application to the Tribunal for approval of the action taken by the company. I am, however, unable to accept the contention of the petitioner that it was a case of dismissal for any misconduct, In the order it has been only said that by virtue of the tripartite settlement the petitioner will cease to be in service with effect from August 31, 1968. In this order no misconduct of the petitioner has been referred to nor any such misconduct has been made a ground for the discharge of the petitioner but, as aforesaid, the order is based on the said tripartite settlement. Accordingly, 1 uphold the finding of the Tribunal that the provisions of Section 33(2)(b) have not been violated by the company in discharging the petitioner from service.

4. The next question is whether the settlement which was arrived at by the union with the management was binding upon the petitioner. It is contended on behalf of the petitioner that as the petitioner was not a party to such a settlement it could not be binding upon him. Strong reliance has been placed on behalf of the petitioner on Section 18(1) of the Act. Section 18 of the Act runs as follows:

18. Persons on whom settlements and awards are binding-

(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 to 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 (3A) of S. (10A) or (an award) (of a Labour Court. Tribunal or National Tribunal) which has become enforceable shall be binding on-

(a) all parties to the industrial dispute;

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

5. Under Sub-section (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 to the agreement. Under Sub-section (3) a settlement arrived at in the course of conciliation proceedings under the Act or an arbitration award in a case where a notification has been issued under Sub-section (3) of Section 10A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on 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. In the instant case, there was a conciliation proceeding as the petitioner himself referred the dispute to a Labour Commissioner. Thereafter, it appears from the affidavit-in-opposition of the respondent, that with the assistance of the Deputy Labour Commissioner who acted as the Conciliation Officer all the disputes between management and the workmen including the dispute of the petitioners were settled. In terms of Sub-section 3(d) such a settlement will be binding upon all workmen of the company including the petitioner. The petitioner was undoubtedly a party to the dispute although he was not a member of the union. The distinction between Sub-section (1) and Sub-section (3) of the Act is that while under Sub-section (1) if a settlement is arrived at by agreement between the employer and workman otherwise than in the course of a conciliation proceeding, it shall be binding only on the parties to the agreement but under Sub-section (3), while such a settlement is arrived at in the course of a conciliation proceeding it will be binding upon all the workmen. The fact that the petitioner was not a member of the union is quite immaterial and does not affect the binding force of the settlement upon all employees. This view finds support from a decision of the Supreme Court in the case of Ramnagar Cane and Sugar Co., Ltd. v. Jatin Chakraborty and Ors. : (1961)ILLJ244SC . It has been held by the Supreme Court that in order to bind the workmen, it is not necessary to show that the said workmen belonged to the union which was a party to the dispute before the Conciliator and that the whole policy of Section 18 of the Act appears 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 bound by such settlement are specified in Sub-section (3) of Section 18. In a subsequent decision of the Supreme Court in the case of Bata Shoe Co. (P)Ltd. v. D.N. Ganguly and Ors. : (1961)ILLJ303SC , the same view has been expressed. On behalf of the petitioner, reliance has been placed on a decision of the Supreme Court in the case of Workmen of Delhi Cloth General Mills Ltd. v. The Management 1972-I. L.L.J. 99 : A.I.R. 1970 S.C. 1851. I fail to understand how that decision helps the petitioner, for that decision has also reiterated the same principle as in the earlier two decisions referred to above. In the Delhi Cloth General Mills' case, the settlement was arrived not in the course of a conciliation proceeding. But, in the instant case before me as has been stated already the settlement was arrived at in the course of a conciliation proceeding with the assistance and concurrence of the Conciliation Officer. In view of Clause (d) of Sub-section (3) of Section 18 of the Act, the settlement will be binding upon the petitioner. In these circumstances, the contention of the petitioner that the settlement was not binding upon him cannot be accepted.

6. Lastly, it has been argued on behalf of the petitioner that there was no such conciliation proceeding. This argument is not available to the petitioner as no such plea has been taken in the petition. It has been specifically stated that the petitioner referred his dispute to the Deputy Labour Commissioner. It has been stated by the respondents in their affidavit in opposition that the Deputy Labour Commissioner acted as the Conciliation Officer in the settlement of dispute between the management and the workmen including the dispute relating to the petitioner. In these circumstances, there is no substance in the contention made on behalf of the petitioner that there was no such conciliation proceeding.

7. The order of discharge was made by the company on September 2, 1968, and the order of the Tribunal was passed on March 10, 1970 which was published in the Calcutta Gazette on April 23, 1970. The application under Article 226 of the Constitution was moved on January 7, 1971, that is, about eight months after the publication of the order of the Tribunal in the Gazette. There can be no doubt that there has been inordinate delay in moving the application under Article 226. The only explanation which has been given by the petitioner in paragraph 27 of the application is that the application could not be moved earlier as the petitioner fell sick and, as such, he could not hand over the file and papers to his advocate and instruct him in respect thereof. The statement made in paragraph 27 has been sworn as the submission of the petitioner. The allegation about the illness of the petitioner as made in paragraph 27 is a vague allegation. No particular has been given in respect of the alleged illness of the petitioner. The petitioner has not also produced any medical certificate in support of this allegation. In these circumstances, I am not prepared to accept the said allegation of the petitioner that due to his illness he could not move the application under Article 226 earlier. On this ground also the application is liable to be dismissed.

8. For the reasons aforesaid, the Rule is discharged. There will be no order as to costs in this Rule.


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