Prag Vanaspati Products v. Kanchan Pal — 1973 DIGILAW 268 (ALL)

JUDGMENT T.S. Misra, J. - This appeal is directed against the order of a learned single Judge whereby the impugned order of withdrawal passed by the State Government under Sec. 6-G of the U. P. Industrial Disputes Act was quashed and it was directed that the Labour Court would continue the proceedings as if there was no order of withdrawal. 2. The facts material for the purposes of this appeal are these. An industrial dispute between the workmen and the employers M/s Prag Vanaspati Product, Aligarh, arose out of the dismissal of the petitioners respondents Nos. 1 to 4 as well as two other workmen with effect from 11th June 1968. On 28th March 1968 a notice for strike was given and the workmen went on strike with effect from 13th April 1968. Thereafter negotiations were held between the workmen and the employers from time to time and ultimately a settlement was purported to have been made on 4th July 1968 before the Deputy Labour Commissioner, U. P. the Assistant Labour Commissioner, Agra Region, and the Assistant Regional Conciliation Officer, Aligarh, the terms whereof were reduced into writing and the representatives of the employers and the workmen put their signatures on the document in the presence of Regional Assistant Labour Commissioner and the Additional Regional Consolidation Officer, as a result whereof the strike was called off forthwith. It was stipulated in the document that the parties had agreed that the dispute arising out of the charge sheets issued to Sarvashri Kanchan Pal Singh, Kamla Shanker, Ganga Saran, Tejpal Sharma, Munshi Lal and Aidal Singh and subsequent action of the employers on their charge-sheets would remain open for scrutiny by the Regional Assistant Labour Commissioner, Agra, who would scrutinise the cases of these six workmen and advice the parties. His advice was to be final and binding on the parties. He was to give his advice in one instalment or in more than one instalments. It was also agreed that the parties would expect that he would be able to give his advice as early as possible. However, the over all period would not exceed two and a half months. It appears that the Regional Assistant Labour Commissioner could not give his advice within the stipulated time but gave his advice on 30th September 1962. It was also agreed that the parties would expect that he would be able to give his advice as early as possible. However, the over all period would not exceed two and a half months. It appears that the Regional Assistant Labour Commissioner could not give his advice within the stipulated time but gave his advice on 30th September 1962. He advised that two of the workmen be re-instated and the other four workmen, namely, Kanchan Pal Singh, Aidal Singh, Kamla Shanker and Ganga Saran, who are the petitioners respondents Nos. 1 to 4, should not be reinstated because the inquiry against them held by the management was not proved to be unfair. The workmen did not, however, accept the advice in respect of the petitioners respondent Nos. 1 to 4. On 30th September 1969 the State Government referred the industrial dispute for adjudication under Sec. 4-K of the U. P. Industrial Disputes Act as to whether the dismissal of Kanchan Pal, Aidal Singh, Kamla Shanker and Ganga Saran with effect from 11th September 1953 was justified and legal and if it was not so what reliefs and damages were the workmen entitled to. While the proceedings were pending before the Labour Court the State Government passed an order on 14th April, 1970 under Sec. 6-G of the said Act withdrawing the proceedings. Thai order was impugned by the respondent Nos. 1 to 4 by a petition under Art. 226 of the Constitution on the ground, inter alia, that the reasons given for the withdrawal of the proceedings was not a valid and relevant reason under Sec. 6-G of the Act. The learned single Judge found that the dispute instead of ending had continued to exist despite the advice given by the Regional Assistant Labour Commissioner. The dispute was not only continued but was reagitated after that advice. The learned single Judge observed that the reasons must be relevant to the order of the withdrawal. Having found that in the instant case the reason for the withdrawal of the adjudication was only illusory the order of withdrawal could not be sustained and was, therefore, quashed. 3. The dispute was not only continued but was reagitated after that advice. The learned single Judge observed that the reasons must be relevant to the order of the withdrawal. Having found that in the instant case the reason for the withdrawal of the adjudication was only illusory the order of withdrawal could not be sustained and was, therefore, quashed. 3. The learned counsel for the appellant contended before us that the expediency of making a reference is at the sole discretion of the State Government and unless the order for withdrawal of the proceedings was not based on any reason or was malafide the same could not be interfered with under Art. 226 of the Constitution. It was also contended that the settlement arrived at before the Conciliation Officer was binding on the parties and the advice of the Regional Assistant Labour Commissioner completely decided the dispute between the parties, hence the State Government could withdraw the reference of dispute in as much as the dispute had ceased to exist. In our view these contentions have no merits. 4. "Industrial dispute" means any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour. "Settlement" means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such an agreement has been signed by the parties thereto in such a manner as may be prescribed and a copy thereof has been sent to the State Government and the conciliation Officer. Under Sec. 3(d) of the Act the Stale Government may by general or special order make provisions for constitution and functioning of Conciliation Boards for settlement of Industrial disputes in the manner specied in the order. Under Sec. 4-F of the Act the State Government may, by notification in the official Gazette, appoint such number of persons as it thinks fit, to be Conciliation Officer, charged with the duty of mediating in, and promoting the settlement of, industrial disputes, in the manner to be prescribed. Under Sec. 4-F of the Act the State Government may, by notification in the official Gazette, appoint such number of persons as it thinks fit, to be Conciliation Officer, charged with the duty of mediating in, and promoting the settlement of, industrial disputes, in the manner to be prescribed. Under Sec. 5-B of the Act were any industrial dispute exists is apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may, at any time before the dispute has been referred under Sec. 4-K to Labour Court or Tribunal, by a written agreement refer the dispute to arbitration and the reference shall be to such person or persons including the Presiding Officer or a Labour Court or a Tribunal as an arbitrator or arbitrators as may be specified in the arbitration agreement who would investigate the dispute and submit to the State Government the arbitration award signed by them. Sec. 6-B of the Act contemplates an agreement outside the conciliation proceedings. Under Sec. 4-K of the Act where the State Government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to the dispute to a Labour Court if the matter of industrial dispute is one of those contained in the First schedule, or to a Tribunal if the matter of dispute is one contained in the First Schedule or the Second Schedule for adjudication provided that where the dispute relates to any matter specified in the Second Schedule and is not likely to affect more than one hundred workmen, the State Government may, if it so thinks fit, make the reference to Labour Court. Sec. 7 (ii) of the Act provides that without prejudice to generality of the powers vesting under the provisions of the Act the State Government may by order for the purposes contemplated in Section 3 enforce in the prescribed manner for such period as may be specified, the whole or any part of an agreement reached in conciliation proceedings between the parties to an industrial dispute. Sec. 23 of the Act empowers the State Government to make rules consistent with the Act for giving effect to the provisions thereof. Sec. 23 of the Act empowers the State Government to make rules consistent with the Act for giving effect to the provisions thereof. In exercise of the powers conferred by Section 23 of the Act the State Government has made the rules which are called the U.P. Industrial Disputes Rules 1957. Rule 4 deals with the power, procedure and duties of Conciliation Officers. Rule 5 provides that a settlement arrived at before a Conciliation Officer or otherwise outside conciliation proceedings should be in form I and should be signed by the persons mentioned therein. It further provides that where a settlement is arrived at before the Conciliation Officer, otherwise than in the course of conciliation proceedings before a Board, the Conciliation Officer shall send a report thereof to the Government with a copy to the Labour Commissioner. Rule 5-A provides that in any case where a Board is successful in bringing about an amicable settlement between the parties, it shall prepare a memorandum in form 1-A, stating the terms of settlement arrived at Sub-clause (5) of rule 5-A provides that the Conciliation Officer shall file all settlements arrived at before him either in the course of conciliation proceedings or otherwise in respect of disputes in the area within his jurisdiction in a register maintained for the purpose in form II. Sub-clause (6) of rule 5-A provides that the State Government may subject to the provisions of clause (2) of Section 7 enforce by an order in form III any settlement arrived at before a Board in the course of conciliation proceedings. Rule 8 deals with arbitration agreements. Rule 26 deals with the application for registration of settlement and rule 27 deals with the procedure for registration of settlements. 5. In the instant case the settlement said to have been made before the Deputy Labour Commissioner, Regional Assistant Labour Commissioner and the Regional Conciliation Officer was not registered in accordance with the provisions of rules 26 and 27. The settlement merely enabled the Regional Assistant Labour Commissioner to give advice. That advice was not an award as contemplated by the Act. The advice was, however, accepted by the employers but was not accepted by the employees respondent Nos. 1 to 4. They still raised the dispute which related to their dismissal. A reference of the said industrial dispute was thereafter made by the State Government under Sec. 4-K of the Act. The advice was, however, accepted by the employers but was not accepted by the employees respondent Nos. 1 to 4. They still raised the dispute which related to their dismissal. A reference of the said industrial dispute was thereafter made by the State Government under Sec. 4-K of the Act. A reference under Sec. 4-K of the Act may be made by the State Government if it is of the opinion that any industrial dispute exists or is apprehended. There is nothing in Sec. 4-K or 6-G of the Act which empowers the Government to make decision on facts affecting the industrial dispute. The State Government under that section does not have the adjudicatory power. The Government is only concerned to find out whether an industrial dispute exists or is apprehended and if it is of the opinion that any industrial dispute exists or is apprehended it may refer the dispute or any matter appearing to be connected with or relevant with the dispute to a Labour Court or an Industrial Tribunal, as the case may be. In the present case the workmen concerned did raise the dispute even after the advice was given by the Regional Assistant Labour Commissioner. The proceedings thereupon commenced before the Labour Court. However, on 14th April 1970 the State Government withdrew the reference. It was stated m that order that as the Regional Assistant Labour Commissioner. Agra, had given his advice in pursuance of the settlement dated 4th July, 1968 which was binding on the parties there remained no necessity for adjudication of the dispute. This power of withdrawal was obviously exercised by the State Government under Sec. 6-G. of the Act. Sec. 6-G however, requires the State Government to state in the order the reasons for withdrawing the proceedings. The reasons must, however, be relevant and not illusory. The reason stated by the Government in its order dated 14th April 1970 was that in view of the advice given by the Regional Assistant Labour Commissioner there remained no necessity for adjudication of the dispute. In our opinion the said reason stated in the said order is illusory. Neither the so-called settlement nor the resultant advice given by the Regional Assistant Labour Commissioner brought an end to the industrial dispute raised by the workmen. The said advice could not purport to be an award as contemplated by the said Act. In our opinion the said reason stated in the said order is illusory. Neither the so-called settlement nor the resultant advice given by the Regional Assistant Labour Commissioner brought an end to the industrial dispute raised by the workmen. The said advice could not purport to be an award as contemplated by the said Act. The dispute continued to exist. It appears that the State Government also formed the same opinion. That is why it took action under Sec. 4-K of the Act and referred the dispute to the Labour Court. From these circumstances it may also be inferred that the advice of the Regional Assistant Labour Commissioner instead of resolving the dispute became a factor for the subsistence of the dispute. The respondent Nos. 1 to 4 did not accept the advice and agitated the dispute. Hence the reasons that the dispute has been settled because of the advice rendered by the Regional Assistant Labour Commissioner and the same no longer required adjudication could not be held to be valid and relevant. They were merely illusory. That being so the said order was unsustainable. 6. There is no force in the appeal. It is accordingly dismissed with costs.