Judgment 1. THE question which arises for determination in this appeal is whether in the facts of this case, any conciliation proceeding was pending at the time an application was made by the appellant Company under section 33 (2) (b) of the Industrial disputes Act for approval by the conciliation Officer of the dismissal of a workman. The decision largely depends on the determination of the effect of an interim settlement on a conciliation proceeding. The appeal also raises a question of considerable importance in industrial law, namely, what is a 'settlement' in the contemplation of subsection (P) of the Section 2 of the Industrial Disputes Act. 2. IT is common case that the conciliation Officer was holding a conciliation proceeding in respect of a dispute on bonus for the year 1964. The Union representing the workmen, contends that surplusage of workmen at the company's Head Office and at some of its units in West Bengal, was also a matter in dispute in the conciliation proceeding. The Company denies the contention. On April 28, 1964, at a tripartite conference, the Company and its workmen, represented by their Union, entered into a settlement by a memorandum of Settlement which reads: -"there was a dispute on the question of bonus for the year 1964 which was referred to for conciliation to the labour Directorate, Government of west Bengal. A number of tripartite meetings were held before Shri H. M. Ghosh, Deputy Labour Commissioner, west Bengal, and after taking into consideration the viewpoints of the parties, the conciliation officer ultimately made certain written suggestions as per his letter No. S/2032/927/64 LC dated 27. 4. 65 for the sake of industrial peace and early settlement of the issue which was considered desirable in the interest of both parties. He suggested in his letter the basis for an interim settlement pending final settlement of the issue, on the basis of Joint Committee's recommendations or otherwise according to law, and the parties in the tripartite conference held on 28. 465 agreed to accept the following terms of settlement:- (1) The Company hereby agrees to pay two months' basic wages towards payment of bonus for the year 1964 over and above one month's basic wages paid as advance in September, 1964. (2) The advance paid in September, 1964, will be adjusted on finalisation of the issue as referred to in the short title. (2) The advance paid in September, 1964, will be adjusted on finalisation of the issue as referred to in the short title. (3) It is hereby agreed by the parties that this interim settlement is without prejudice to the legal rights of the parties concerned and in. the event no final settlement on bonus for the year 1964 is reached through course of negotiation between the parties it would be open for the parties to exercise their respective legal rights. " 3. THE parties as also the conciliation Officer subscribed their signatures to the Memorandum of Settlement. On June 12, 1965 the Company filed two applications before the Conciliation officer, one under Section 33 (3) for permission to dismiss the respondent no. 2 and another application under section 33 (2) (b) for his approval of the dismissal of the respondent No, 3. Those applications are still pending. 4. ON January 13, 1966, by a memorandum of Settlement signed by the parties to the dispute and by the conciliation Officer, the parties arrived at an over-all settlement. By Clause 4 of the Memorandum of Settlement, the dispute relating to bonus for 1964 was settled. It reads:-Clause 4: The following agreement has been arrived at by the parties under Section 34 (3)of the Payment of Bonus Act, 1965. (a)The Company will pay bonus in respect of the calendar year 1964 to each workman who has worked for not less than thirty working days during the said calendar year and who has not been dismissed for the reasons set out in Section 9 of the Payment of Bonus act, 1965, an amount equal to 3/12ths (three-twelfths) of his actual basic earnings for the period 1st January, 1964 to 31st December, 1964, and this payment will be in full settlement of all his claims for bonus for the calendar year 1964. (b) Any amount paid as bonus for the year 1964 under terms of notice dated 1st May, 1965 will be adjusted against the bonus mentioned in sub-clause (a) above. (b) Any amount paid as bonus for the year 1964 under terms of notice dated 1st May, 1965 will be adjusted against the bonus mentioned in sub-clause (a) above. Further, any amount already paid by the Company as advance vide Notice dated 16th September, 1964 in the month of September, 1964 or subsequently to any workman or ex-workman shall be adjusted against the payment mentioned in the foregoing sub-clause (a. On May 13, 1966, the Company filed two applications before the conciliation Officer contending that he had no jurisdiction to deal with the applications under Section 33 (3) and 33 (2) (b)which were pending before him. The reason given in the petitions which were used as grounds of the applications was that on January 3, 1966, the company and its workmen had concluded an over-all settlement under sections 12 (3) and 18 (3) of the Industrial disputes Act and therefore Section 33 had ceased to be applicable to the cases before him. 5. BY a letter dated July 4, 1966, the Conciliation Officer intimated to the Company that he was of the view that he had jurisdiction to decide the applications. 6. AGGRIEVED by the finding of the conciliation Officer, the Company moved this Court in its writ jurisdiction and obtained a Rule. At the hearing of the Rule, the learned advocate for the Union conceded that the Rule should be made absolute as against the respondent No. 2, that is to say, in respect of the application under Section 33 (3. The hearing was, therefore, confined only to the consideration of the question of jurisdiction of the Conciliation Officer to hear the application under Section 33 (2) (b). 7. THE learned Judge made the rule absolute against the respondent no. 2 and discharged the Rule against the respondent No. 3, holding that the conciliation Officer had lost his jurisdiction to hear the application under section 33 (3) but not the one under section 33 (2) (b. 8. ALTHOUGH before the conciliation Officer, the main, if not the sole ground of attack on his jurisdiction to hear the application under Section. 2 and discharged the Rule against the respondent No. 3, holding that the conciliation Officer had lost his jurisdiction to hear the application under section 33 (3) but not the one under section 33 (2) (b. 8. ALTHOUGH before the conciliation Officer, the main, if not the sole ground of attack on his jurisdiction to hear the application under Section. 33 (2) (b) and Section 33 (3) was that the over-all settlement of January 13, 1966 had taken his jurisdiction away, the Company in its petition before this court took the additional objection that the conciliation proceeding had been concluded by the interim settlement of April 28, 1965 and therefore, the Conciliation Officer had no jurisdiction to entertain the applications when they were presented before him. It was submitted that the applications were made under mistake and misapprehension of law. Not only had the conciliation Officer no jurisdiction to deal with the applications after the over-all settlement of January 13, 1966 had been concluded but he had no jurisdiction ab initio to deal with them. Section 33 (2) (b) states that during the pendency of any conciliation proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise that workman, provided that no such workman 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. 9. IT is clear that the provisions of Section 33 (2) (b) are attracted only when any conciliation proceeding is pending. The question is therefore, whether on June 12, 1965 when the application under Section 33 (2) (b) was presented, any proceeding was pending before the Conciliation Officer. 10. LEARNED advocate for the appellant contended that the proceeding was concluded by the Memorandum of Settlement of April 28, 1965. He relied on sub-section (2) of Section. 20 which provides : -The conciliation proceeding shall be deemed to have been concluded- (a) Where a settlement is arrived at, when a Memorandum of Settlement is signed by the parties to the dispute. He relied on sub-section (2) of Section. 20 which provides : -The conciliation proceeding shall be deemed to have been concluded- (a) Where a settlement is arrived at, when a Memorandum of Settlement is signed by the parties to the dispute. The conditions which have to be satisfied to attract the deeming provision are, therefore:- (i) A settlement must be arrived at; (ii) A Memorandum of Settlement must be signed by the parties to the dispute. It is not in question that a memorandum of Settlement was signed by the parties on April 28, 1965. The only question which has to be determined is whether the parties arrived at a settlement, or in other words, whether the agreement or arrangement embodied in the Memorandum of Settlement is a settlement in the contemplation of the statute. 11. THE word 'settlement' is denned in Section 2 (P)to include a settlement arrived at in the course of conciliation proceeding. It is clear that unless an arrangement arrived at between the parties is a settlement in its grammatical or ordinary signification, such an arrangement although arrived at in a conciliation proceeding will not be a settlement within the meaning of Section 2 (P). 12. THE term 'settle' is used in more senses than one. One settles properties; one settles accounts literally and metaphorically. In relation to disputes, the word means, as will appear from the Oxford English Dictionary, 'to decide, to decide by arrangement between the contesting parties'. Obviously, what is decided by settlement is the dispute. Every settlement is an arrangement or agreement. But every arrangement or agreement is not a settlement. An agreement or arrangement will not be a settlement merely because the parties to the dispute choose to call it a settlement and the agreement or arrangement is incorporated in a memorandum of Settlement signed by the parties. It must decide some part of the dispute or some matter in dispute or decide the procedure by which the dispute is to be resolved, or affect the dispute in some manner or other or provide for some act or forbearance in relation to the dispute on the part of a party or parties to the dispute. 13. THE dispute in the present case relates to 'bonus for 1964'. The dispute is expressed in wide terms. It certainly includes quantum of bonus for 1964. 13. THE dispute in the present case relates to 'bonus for 1964'. The dispute is expressed in wide terms. It certainly includes quantum of bonus for 1964. It also includes by reason of the amplitude of the dispute, namely 'bonus for 1964', the time and manner of payment of the bonus. The settlement of April, 1965 does not determine the quantum of bonus. It only provides for ad hoc payments to be made on account of bonus which are to be treated as advance and adjusted later, on final determination of the quantum. The overall settlement of January, 1966, therefore, naturally provides for adjustment of these payments against the bonus payable there under as is made clear by clause 4 of the Memorandum of Settlement. 14. THE interim settlement of April, 1965 does not decide any part of the dispute with regard to the quantum of bonus. It does, however, affect the dispute because it provides for an interim payment pending settlement of the dispute. It decides, though only for the time being, the time and mode of interim payment of bonus for 1964. Moreover, Clause 3 of the Memorandum of Settlement provides that in the event of no final settlement on bonus for the year 1964 being reached through course of negotiations between the parties it would be open for the parties to exercise their respective legal rights. The settlement, therefore, contemplates that the parties will carry on negotiations, at least for the time being, to determine the dispute 'and not enforce their legal rights immediately. That is a term which affects the procedure for determination of the dispute. The agreement is, therefore, a settlement although it does not decide the quantum of bonus. It is a settlement because it affects the dispute in relation to the manner and time of interim payment of bonus and the procedure by which the dispute is to be determined. The question then arises whether the settlement of April, 1965 concludes the conciliation proceeding. If a dispute pending before a Conciliation officer is referred to arbitration or the parties decide on some procedure for determination of the dispute which is inconsistent with the continuance of conciliation proceeding, no doubt the settlement will conclude the conciliation proceeding. It will also be concluded by settlement if the settlement decides the matters in dispute. 15. If a dispute pending before a Conciliation officer is referred to arbitration or the parties decide on some procedure for determination of the dispute which is inconsistent with the continuance of conciliation proceeding, no doubt the settlement will conclude the conciliation proceeding. It will also be concluded by settlement if the settlement decides the matters in dispute. 15. THE settlement of April, 1965 did not decide the quantum of bonus at all nor did it decide the manner and time of payment of bonus in its entirety. The parties decided to negotiate without prejudice to their legal rights. Negotiation is not inconsistent with conciliation proceedings; on the contrary, it may be in aid of conciliation proceedings. 16. A settlement only settles the matter or matters in dispute which it settles. If some of the matters in dispute are not settled it cannot be said that the settlement settles the entire dispute or settles those matters in dispute which are not within the scope of the settlement. The interim settlement of April, 1965 not only leaves the dispute relating to quantum of bonus for 1964 at large but it also leaves at large the time and manner of payment of the bonus in its entirety. It only settles the manner and time of ad hoc payments to be made on account of bonus and the procedure for determination of the dispute to be adopted for the time being. The settlement of April, 1965 therefore, did riot conclude the conciliation proceeding, or at least, not in its entirety. 17. IN my opinion, Clause (a) of sub-section (2) of Section 20 means that a conciliation proceeding shall be deemed to have been concluded in respect of those matters in dispute as regards which a settlement is arrived at, when a Memorandum of Settlement is signed by the parties to the dispute. By that provision, the conciliation proceeding cannot be deemed to have been concluded also in respect of those matters in dispute which are not settled by the settlement. 18. By that provision, the conciliation proceeding cannot be deemed to have been concluded also in respect of those matters in dispute which are not settled by the settlement. 18. TO hold that a settlement which leaves some of the matters in dispute at large will have the effect of concluding the conciliation proceeding in its entirety is contrary to good sense, for assuming that the conciliation proceeding is concluded by the settlement in respect of matters which are not settled by the settlement, the Conciliation officer may and should hold conciliation proceeding de novo to resolve the dispute in respect of those matters. Such a situation will breed meaningless and unnecessary multiplicity of proceedings. In the view I have taken, I have no hesitation in holding that the conciliation proceeding was pending in the eye of law even after the settlement of April, 1965; it was pending on June 12, 1965 when the application under section 33 (2) (b) was presented before the Conciliation Officer; it remained pending till January 13, 1966 when the memorandum of Settlement by which an over-all settlement was arrived at which included a settlement of the dispute relating to bonus for 1964. 19. LEARNED advocate appearing on behalf of the appellant relied on (1)State of Bihar v. D. N. Ganguly and ors. 1958 2 LLJ 638. In the facts of that case, it was agreed that 110 strikers would be employed by the Company in the same manner in which 76 strikers had already been employed by it. It was further agreed that 30 strikers were to remain dismissed and not considered eligible for employment. In regard to the remaining 30 strikers, the company agreed to consider their cases later on for re-employment. During the negotiations 60 workmen did not make any demand to the management for reinstatement nor was their case raised by any organisation. The court held that in the result, so far as the union was concerned, the dispute regarding the entire body of strikers who had been dismissed by the company came to an end by virtue of the agreement between the Company and the Union. 20. IN the Supreme Court case, the 60 workmen were not parties to the dispute and, therefore, the fact that they were not parties to the settlement, was of no consequence. 20. IN the Supreme Court case, the 60 workmen were not parties to the dispute and, therefore, the fact that they were not parties to the settlement, was of no consequence. They did not raise any dispute, and, therefore, there was nothing to settle so far as they were concerned. As regards 30 workmen whose case the Company agreed to consider later, it could not be said that no decision had been taken by the settlement. Their cases were left to the discretion of the Company to be exercised later. Nothing was, therefore left of the dispute. In the present case the main dispute is on the quantum of bonus. That dispute remained outstanding after the conclusion of the interim settlement. It was submitted that the use of the word 'deemed' in Section 20 (2)is intended for an artificial construction of the words 'to have been concluded' in relation to conciliation proceeding, or in other words, the sense of the sub-section is that although the proceeding is not actually concluded by a settlement it is concluded in the eye of law by virtue of the deeming provision. Learned advocate relied on (2)Barclays Bank Ltd. v. Inland Revenue commissioners (1959) 1 All. E. R. 1965. In that case reliance was placed at the bar on an observation of Lord Radcliff in (3) St. Aubyn v. Attorney general (1951) 2 All. Eng. R. 473. "the word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a, comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible." Commenting on these remarks danckwerts, J. said : "this seems to me to resemble the methods of Humpty dumpty mentioned by Lord Atkin in (4) Liversidge v. Anderson (1941) 3 all. E. R. 338 at p. 361. It is not necessary for me to import Alice in Wonderland for the purpose of this case. Suffice it to say, that a deeming provision is not always used in a statute in aid of an artificial construction as Lord radcliffe himself recognized. In. E. R. 338 at p. 361. It is not necessary for me to import Alice in Wonderland for the purpose of this case. Suffice it to say, that a deeming provision is not always used in a statute in aid of an artificial construction as Lord radcliffe himself recognized. In. my opinion, the deeming provision is used in sub-section (2) of Section 20 to underline what is obvious and to make doubly certain what is certain. 21. IT is interesting to note that the appellant in its petition which was used as grounds of the application inviting the Conciliation Officer to hold that he had no jurisdiction to deal with the application under Section 33 (2) (b), stated that on 12th June, 1965 when the application was presented before the Conciliation Officer, the following disputes between the applicant and its workmen were pending before the conciliation Officer :- (a) Bonus for the year 1964. (b) Redundant workmen in the Company's Head Office and in other units in West Bengal. 22. IT was strenuously contended before us on behalf of the Company as it was before the Court below, that the dispute relating to the redundancy of workmen was not the subject-matter of any conciliation proceeding. The learned judge found that it was not. On behalf of the Union it is claimed that it was. It is nobody's case that the dispute relating to redundancy of workmen was not pending on June 12, 1965, that is to say, when the application under Section 33 (2) (b) was presented. What is in dispute is whether that dispute was pending in any conciliation proceeding. It is clear from the materials on record that the Conciliation officer concerned himself with the dispute with regard to the redundancy of workmen but it is also equally clear that the dispute was settled by an agreement between the parties which was not incorporated in a Memorandum of Settlement in any conciliation proceeding. Assuming that the dispute as regards redundancy of workmen was pending de hors the conciliation proceeding and not in the conciliation proceeding itself, in any case, the dispute with regard to bonus for 1964 remained pending before the Conciliation officer on June 12, 1966, the settlement of April, 1965 not having concluded the conciliation proceeding in the eye of law. Assuming that the dispute as regards redundancy of workmen was pending de hors the conciliation proceeding and not in the conciliation proceeding itself, in any case, the dispute with regard to bonus for 1964 remained pending before the Conciliation officer on June 12, 1966, the settlement of April, 1965 not having concluded the conciliation proceeding in the eye of law. Learned advocate for the Union submitted before us that the interim settlement of April, 1965 did not conclude the conciliation proceeding because there is no evidence on record from which it appears that the conciliation officer reported the settlement to the appropriate Government as enjoined by sub-section (3) of Section 12. It is not necessary for us to pronounce on the validity of the submission. There is nothing on record from which it appears that a report of the settlement was not sent by the Conciliation Officer. Under illustration (c) to Section 114 of the Evidence Act, the Court may presume that official acts have been regularly performed. The point is not taken by the Union in its affidavit nor was it agitated before the learned judge. In those circumstances, it will not be fair to permit the respondent to make submissions on this question which is basically a question of fact, namely, whether a report was sent by the Conciliation Officer in compliance with sub-section (3) of Section 12 or not. 23. LEARNED advocate appearing on behalf of the appellant submitted that the Union in its affidavit did not dispute that the conciliation proceeding was concluded by the settlement of April, 1965. He claimed that the Union relied on the pendency of conciliation proceedings in relation to other disputes. The Court has not found that those other disputes were pending before the Conciliation Officer at the date the application u/s. 33 (2) (b)was presented by the Company before the Conciliation Officer. That may be so. The appellant must, however, succeed on the strength of the material disclosed and the averments made in the petition. The settlement of April, 1965 has been disclosed by the petitioner in its petition. The over-all settlement of January, 1965 as also the application under Section 33 (2) (b)are also disclosed by the petitioner. The court is, therefore, not precluded from examining the effect of the interim settlement of April, 1965 on the conciliation proceeding. 24. The settlement of April, 1965 has been disclosed by the petitioner in its petition. The over-all settlement of January, 1965 as also the application under Section 33 (2) (b)are also disclosed by the petitioner. The court is, therefore, not precluded from examining the effect of the interim settlement of April, 1965 on the conciliation proceeding. 24. LEARNED advocate for the appellant relied on (5)Jabalpur Municipality v. State of Madhya Pradesh, AIR 1966 SC 837 . There Ayyangar, J. said:- "to confine a party to his pleadings, particularly to his allegations as regards facts is dictated not merely by the need for orderliness in these proceedings but for avoiding surprise to the other party and consequent injustice resulting there from. Save in exceptional cases, parties should be held strictly to their pleadings and if owing to discovery of new matter of grounds, there is need to add to or modify the allegations either in the petition or in the counter affidavit, the Court should insist on formal amendments being effected, for this would enable each party to state its case with precision and definiteness and the other side would have a proper opportunity to know this case and meet with appropriate defences." In the present case, to rely on the petition is not to take the petitioner by surprise nor to deny the petitioner an opportunity to answer the case he has himself made in the petition. The petitioner, who alluded to the interim settlement and founded his case on the legal effect of that settlement, cannot legitimately complain if the Court examines the settlement and its legal effect and comes to the conclusion that the settlement did not conclude the conciliation proceeding. Learned advocate for the appellant submitted that the principles applicable to pleadings in ordinary civil proceedings do not apply to writ proceedings. Once a rule has been issued all that the Court will see at the hearing is whether the opposite party has shown sufficient cause why the Rule should not be made absolute. In other words, he contends that the Court should address itself to the affidavit of the opposite party alone in deciding the matter. It is true that once the opposite party shows cause the Rule cannot be recalled. In other words, he contends that the Court should address itself to the affidavit of the opposite party alone in deciding the matter. It is true that once the opposite party shows cause the Rule cannot be recalled. It is a shot arrow which has hit its marl: that does not mean that at the hearing of the Rule, the Court cannot examine the merits of the case disclosed in the petition and discharge the Rule. The issue of a Rule cannot be permitted to play the role of Juggernaut and convert the clay-cart of a petition into a mighty engine. 25. IN the view we have taken, we hold that a conciliation proceeding was pending in relation to the dispute on bonus for 1964 on June 12, 1965 when the application under Section 33 (2) (b)was presented by the Company. The conciliation Officer had, therefore, power and jurisdiction to entertain and hear the application. That jurisdiction he did not lose even by the settlement of January, 1966. It was held in (6) Tata Iron and Steel Company Ltd. v. S. N. Modak, AIR 1966 SC 380 that where as a result of the pendency of an industrial dispute between an employer and his employees, the employer is required to apply for approval of the dismissal of his employee under Section 33 (2) (b) of the Industrial disputes Act, such an application survives even after the main industrial dispute is finally decided. In (7) P. D. Sharma v. State Bank of India, AIR 1968 SC 985 , the Supreme Court held that an 'application made under Section 33 (3) becomes incompetent after the industrial dispute has been decided. 26. IN our opinion, the learned judge was right in making the Rule absolute as against the respondent No. 2 in respect of the application under section 33 (3) and in discharging the rule as against the respondent No. 3 in respect of the application under section 33 (2) (b). In the view we have taken the appeal fails. The order of the learned judge is affirmed. The appellant will pay the costs of the appeal assessed at 2 gold mohurs. The ad-interim order will continue till six weeks after the long vacation.