( 1 ) THIS petition under Arts. 226 and 227 of the, Constitution, is directed against the award dt. 23rd August 1971 made by the Labour Court, Mangslore in Reference (ID) (LCM) No, 78 of 1969. ( 2 ) BRIEFLY stated, the facts leading up to the petition are these, : the petitioner is a Union representing the workmen employed in the concern known as M/s P. M. Madurai Moodaliar and Sons which is the first respondent in this petition. Respondent 1 is engaged in the manufacture of engineerng goods. It has a machine shop at Jali Mohalla and an iron foundry at Mysore Road, Bangalore. Respondent 1 manufactures sugar-cane crushers, oil crushers and other various machine parts including the manufacture of agricultural implements like water pump and other accessories. The workmen through the Union have from time, to tme entered into, settlements relating to their service conditions and also, on the production targets. The, last of such settlement was dt. 22nd July, 1965, arrived at under S. 12 (3) of the Industrial Disputes Act. The, said settlement was to be in force, for a period of three years, that is, upto 31st May 1968. During the currency of the settlement, the, relationship between the workmen and the management was not cordial. The management has alleged that the workmen have not given minimum production as required under the said settlement and thereby thay have committed breach of the settlement. The workmen were also informed that if production was not given as per the agreement, the wages would be paid at the rate that prevailed before fixing the production targets. In spite of it, the relationship did not improve. Thereafter the management issued notices to the workmen charging them that they have committed breach of the settlement under S. 29 of the Industrial dispute Act by slowing down the production and thereby committed misconducts under the relevant Standing Orders applicable to them. ( 3 ) THE allegations were all denied by the workmen, contending inter alia, that they were not guilty of the breach complained of. They further tated that the charges against them were vague and the management had no right to take disciplinary proceedings for slowing down the production. ( 3 ) THE allegations were all denied by the workmen, contending inter alia, that they were not guilty of the breach complained of. They further tated that the charges against them were vague and the management had no right to take disciplinary proceedings for slowing down the production. The management, however, alter a summary enquiry, dismissed 82 workmen, out of whom some latter entered into individual agreements with thq management and left the concern after obtaining their provident fund accumulations and other dues. All this gave, rise to an industrial dispute, which the State Government referred for adjudication to the, Labour court on the following points : (1) Is the management of M/s P. M,madurai Moodaliar and Sons, Bangalore justified in dismissing the workmen of their foundry in Jolly Mohalla and of their machine shop on Mysore Road, after holding a summary enquiry? (vide list Annexures I, II and III) (2) Whether the individual agreements signed between the parties under S. 2 (P) of the Industrial Disputes Act, 1947 are valid, in view of the fact that they are, already involved in a dispute? (vide list IV) (3) If not, to what reliefs the, said workmen are entitled to? ( 4 ) BEFORE the Labour Court, on behalf of the workmen the Union filed its claim statement, inter alia, contending that the dismissal of the workmen was unjust, arbitrary and amounts to unfair labour practice, besides being a measure of victimisation. It was further contended that the workmen have discharged their duties quite, faithfully and they were not responsible for the loss in production. On the question of settlements entered into by the individual workmen, the following averments ar found at paragraph 11 of the statement. " It is also submitted that after passing the orders of dismissal the ii party management have taken back the workmen mentioned in the annexure 4 to the order of reference. The, management have, taken indivisual agreements from these 27 workmen by which their wages, clearness allowance and other benefits have been reduced. This has been done when the pievious settlement dt. 15th July 1965 entered into between the workmen and the management has been in existence. It is submitted that the individual agreements which have been taken by the management from these workmen is contrary to S. 19 (2) of the Industrial Disputes Act. This has been done when the pievious settlement dt. 15th July 1965 entered into between the workmen and the management has been in existence. It is submitted that the individual agreements which have been taken by the management from these workmen is contrary to S. 19 (2) of the Industrial Disputes Act. It is also clear case of unfair labour practice. The said action of the management is also mala fide and the, said individual agreements are; not binding on the said workmen. The agreements are also taken by misrepresentation and committing fraud on the said workmen. The management have fully exploited the helplessness of these, workmen while making them to sign the said agreements from them. Hence, it is submitted, that the said agreements are not binding on them. It is also submitted that the said agreements are contrary to thei provisions of the Industrial' Disputes Act in view of the fact the matters in question were, already involved in an industrial dispute before the Labour and Conciliation Officer. For these reasons, it is submitted that this Honable Co,urt may be pleased to declare the said agreements as invalid and as not binding on the workmen whose names are mentioned in Annexure 4 to the order,, of reference,. " ( 5 ) THE management in their reply statement stated that the dismissal order against the workmen were made for proved misconduct and they were made after proper enquiry. It was further stated that the workmen have committed a breach of the settlement, by the terms of which they had agreed to give a minimum production. It was alsp averred that the individual settlements entered into by the workmen after their dismissal were binding on them and they were not entitled to reinstatement. On these contentions, the Labour Court framed the following issues : (1) Whether the termination of workmen of first party mentioned in the list (1) and (2) of the Annexurer to the reference justifiable? whether the orders of dismissal made are perverse, opposed to natural justice and are due to unfair labour practice and victimisation? (2) Whether the individual agreements entered into by the workmen mentioned in list (4) of the Annexure to the reference are valid and binding? whether the orders of dismissal made are perverse, opposed to natural justice and are due to unfair labour practice and victimisation? (2) Whether the individual agreements entered into by the workmen mentioned in list (4) of the Annexure to the reference are valid and binding? (3) Whether the workmen of the first party mentioned in Annexurea 1 end 2 of the reference are entitled to be reinstated with back wages and* continuity of service? (4) Which of the workmen of first party mentioned in Annexure are working elsewhere after dismissal and if so the wages earned by each of them has to be taken into consideration in case, they are reinstated with back wages ? (5) To what relief, if any, are the first party workmen entitled to ?the Labour Court also framed the following additional issue, as isuue No. 1 (a) which reads ;"1 (a) Whether the charge as shown in the show-cause notice cumcharge-sheet dt. 27 th June 1966, Ext. W5, that the, first party workmen committed breach of settlement dt. 22nd June 1965 entered into between them and the second party management, by slowing down the production and failing to give the agreed production i. e. at half ton per month on the total number of workmen, skilled, semi-skilled and unskilled, and if in any month production fell below the minimum it would be made good by extra production in the subsequent month in case of foundry section of the, second party, and a guaranteed production of Rs. 1-75 per man hour in the machine shop of the second party, is proved? If proved, whether it amounts to misconduct ? on the above issues, both the parties produced evidence, which the labour Court considered and passed the award which is impugned in this petition. On Issues No. l and 1 (a), the Labour Court has held that the management was not guilty of unfair labour practice or victimisation in dismissing the workmen. It however set aside the dismissal of 82 workmen by observing thus : in the result, the first part of the additional Issue No. 1 and the additional issue No. 1 (a) have to be answered in the terms, that the charge as shown in the show cause-cum-charge memo dt. 27th June 1966 contained in Ext. W5 that the first party workmen committed breach of settlement dt. 27th June 1966 contained in Ext. W5 that the first party workmen committed breach of settlement dt. 22nd June 1965 entered into between them and the second party management, by slowing down production, and failed to give the agreed productions, i. e. , at half a ton per man per month in the foundry, and 1. 75 per man hour in the machines-shop of the, second party, is proved, but this breach of settlement does not amount to misconduct under any of the provisions of the Standing Order 15a contained In Ext. M. 131. The dismissal order Ext. M. 11 based on the finding of breach of settlement dated 22nd July 1965, contained in Ext. M. 1 read with Ext. M2, is consequently held not justified in respect of all the Workmen mentioned in the, list 1 and 2 of the Annexure. to the reference, to the extent of 83 workmen as mentioned in the list of dismissed workmen filed by the second party on 29th august 1969. "on point No,. 2 in the reference, the Labour Court has observed that the settlements entered into by the 27th workmen mentioned in "list IV of the order of reference were valid and binding under 5. 18 (1) of the industrial Disputes Act. It has also fpund that the agreements were voluntarily entered into by the executants, the copies of which were sent to the secretary to the Govt, Labour Dept, Labour Commr and also, the Conciliation officer as required under Rule 59 of the Industrial Disputes (Karnataka) rules, 1957. The same was the opinion expressed on the remaining 20 settlements. On the question whether the reinstated workmen were, entitled to back wages and continuity of service, it observed that there was no evidence as to whether they were employed or not after their dismissal and the workmen have not proved that they remained unemployed in spite of their efforts to secure an employment during thei period of their dismissal. Further, the Labour Court added that on account of their slowing down the production, they were clearly responsible for the loss caused to the management and therefore they cannot at any rate be held entitled to any portion of back wages. Further, the Labour Court added that on account of their slowing down the production, they were clearly responsible for the loss caused to the management and therefore they cannot at any rate be held entitled to any portion of back wages. It observed :"in view of these losses, which have resulted from their sheer slowing down of the production of the second party factory, they cannot, in my view, at any rate, be held entitled to any portion of their back wages. I am of opinion that the circumstances as regards the first party workmen slowing down the production of the siecond party factory and thereby causing loss to the siecond party management, cannot be discarded from consideration while considering the, question as to whether they merit payment of back wages or not. Hence the additional Isiue No. 4, on the foregoing grounds is answered in the terms, that none, of the, 82 dismissed workmen referred to above, are. entitled to any back wages. "finally, the following award was made :" In view of the findings given above. , the reference is answered in the terms, (i) that the management of Mis. P. M. Madurai Moodaliar and Sons, bangalore was not justified in dismissing the 82 workmen of their foundry in Jolly Mohalla and of their Machine Shop on mysore Road after holding a summary enquiry, (ii) that the individual agreements signed by 27 (twenty-seven) workmen whose names find place in List IV of the order of reference, are vajid and binding on '] them, (Hi) and -that out of 82 dismissed workmen, only 29 (twenty-nine) workmen named in List I below are held entitled to be reinstated with continuity of service, but without back wages, (iv) and further that the remaining 29 (twenty-nine) workers named in List II below who have entered into settlements after the reference with the second party management are also held bpund by the settlements indicated above in connection with the Point 2 of the points of dispute end the additional Issue No. 2 and they are held not entitled to reinstatement with continuity of service and back wages. " ( 6 ) MR. SUBBA Rao, learned Counsel for the petitioner urged two contentions. " ( 6 ) MR. SUBBA Rao, learned Counsel for the petitioner urged two contentions. (1) the denial of back wages to 29 workmen named in List I was illegal, and (2) the settlements entered into by individual workmen before and after the reference were, not binding on those workmen. ( 7 ) ON the first contention, he submitted that the Labour Court was in error in throwing the burden on the workmen to prove that they were not employed elsewhere during the period of their dismissal. He said that in the absence of any evidence the said workmen were employed elsewhere, the Labour Court was bound to give them the benefit of back wages consequent on the order setting aside their dismissal. In support of his contention, he placed reiiance on the following two decisions of the Supreme court. Tulsidas Paul v. Seond Labour Court, W. B. , 1971 (1) LLJ 526 , and Workmen of Assam Match Co v. Presiding Officer, Labour Court, 1973 (2) LLJ. 279, he" also referred me to the decision of the Allahabad High Court in postal Seals Industrial co-op Society v. Labour Court , 1971 (1) LLJ. 3277. ( 8 ) IT may not be necessary to refer in detail to the principles stated in the above cases, as it is now wall established that it is within the discretion of the adjudicating authority to grant or deny the relief of back wages, but that diseretion -has to be exercised by relevant considerations. Now in the instant case, it cannot be said that the Labour Court has unreasonably denied the back wages to the reinstated workmen. The labour Court has set Aside the dismissal orders not on the basis that there was any unfair labour practice or victimisation. The'orders were set aside on the ground that not giving a required production as per the settlement did not amount to misconduct under the relevant Standing Orders. "the fact, however, remains "that the loss in production was due to the negligence of. the dismissed workmen. The sattlement entered into by the workmen was to give a minimum production to the management and that minimum production was determined on a scientific basis. "the fact, however, remains "that the loss in production was due to the negligence of. the dismissed workmen. The sattlement entered into by the workmen was to give a minimum production to the management and that minimum production was determined on a scientific basis. The evidence, of the management shows that the workmen not only did not give the agreed minimum production during the currency of the settlement, bufihey deliberately slowed down the work so that they could earn overtime wages. In the year 1965, the loss in production was proved to be Rs. 3911 and in the year 1966 the total lose was Rs. 17,429. After taking in to. consideration these circumstances, the Labour Court held and in my opinion very rightly, that the workmen should not the given the back wages though they were entitled to reinstatement. The discretion exercised by the labour Court, in the circumstances, cannat be said to be Arbitrary or illegal, and if it is not arbitrary or illegal, this Court in a petition under art. 226, has no jurisdiction to interfere with that discretion. My view finds support from the decision of the Supreme Court in tika Ram and Sons ltd v. Its Workmen ,air. 1960 SC. 198 wherein Gajendragadkar, J. , speaking or the court observed : " The propriety of the directions issued by the Tribunal in regard to the payment of subsistence allowance and back wages cannot be challenged'in the present appeal because that clearly isa a matter of discretion. " similar view was expressed by the Allahabad High Court in rakeshwar duyal v. Labour Court, Kanpur, 1962 (1) LLJ. 5 . In this view of the matter, it is unnecessary to consider whether the lbour Court was in error in shifting the burden on the workmen to prove that they had remained unemployed during the period of their dismissal. ( 9 ) I shall now proceed to consider whether the finding of the Labour court on the binding effect of the settlements of individual workmen with the management, has been vitiated by any error of law or fact. In all there were 56 such sottlements. 27 of them were executed by the workmen whose names are set out in List IV of the order of reference. Those settlements worn entered into, before the order of reference. In all there were 56 such sottlements. 27 of them were executed by the workmen whose names are set out in List IV of the order of reference. Those settlements worn entered into, before the order of reference. The remaining 29 settlement were entered into by the workmen during the pendency cut the dispute before the Labour Court. 25 of them were entered into before the stalement was filed by the Union and the remaining 4 were after tha statment was filed. The Union, in their statement before the Labour court, did not specifically deal with those settlements. Their averments in that regard are very vague. But they have examined about ten witnesses on the validity of some of the settlements entered into by the workmen in list IV of the order of reference. ( 10 ) MR. Subba Rao urged that the said settlements could not have hern entered into by the individual workmen when 1he dispute was a collective dispute and the Union which has espoused the cause of the workmen was not a party to any of the settlements and therefore they were invalid. He also urged that the settlements were not in the prescribed form 'h', and the copies of which were not sent to the authorities in strict conformity with Rule 59 of the Industrial Disputes (Karnataka) Rules, 1957. He further urged that the Labour Court ought to have considered whether those settlements were fair and reasonable, before, holding that they were binding on the executants. ( 11 ) BEFORE considering whether the settlements in question were in accordance with the provisions of Rule 59 of the Rules or not, it is necessary to examine whether the individual workmen in the instant case were competent to enter into settlements. In my view, there is no inhibition for a concerned workman in a Dispute to enter into a settlement with his management even though his Union is a party to the dispute. The 'industrial dispute' has been defined in S. 2 (k) of the Industrial Disputes Act as meaning : " Any dispute or difference between employer annd workmen. ,. ,, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. " the two parties to the dispute are therefore the employer, that is, the management and the workmen employed therein. ,. ,, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. " the two parties to the dispute are therefore the employer, that is, the management and the workmen employed therein. The dispute which the Govt is required to refer for adjudication to the Labour Court is a dispute between the employer and its workmen. Under S. 36 of the Act, the workman who is a party to a dispute shall be entitled to be represented in any proceedings under the Act by an Officer of the Trade Union of which he is a, member. The Union is unpleaded as a party to the dispute for the purpose of representation. It cannqi therefore be said that the Union alone has got power IQ enter into settlement in a dispute pertaining to individual workmen. The concerned workman, in my view, could always enter into a setlement with his management and that personal right of his, is not deprived of merely because, he is represented by the Union, in any proceedings under the Act. ( 12 ) IT is doubtless true that a settlement in order tha,t it should be binding, must be in conformity with Rule oy of the Rules. the scope of a setllemtnt entered into under a similar rule came up tor consideration before the Supreme Court in workmen of Delhi Court and General Mills Ltd v. Delhi Court and General Mills Ltd , 1972 (1) LLJ. 99 it was observed therein that keeping in view the object and the purpose of the rule, it does seem 10 demange full compliance in order to claime the settlement with a binding character on all workmen. Similar view was expressed by the Supreme court in an earlier decision in technological Institute of Textiles v. Its workmen , 1965 (2) LLJ, 149 ( 13 ) I shall now examine, the contention urged for the petitioner that settlements were not in conformity with Rule 59 and that the Labour Court was in error m holding otherwise. I have perused the copies of the disputed settlements and also, the evidence produced by the parties. All these setalments are in the, form prescribed for the purpose. The copies of than were sent to the State Govt, the Labour Commr, the Asst Labour Commr and the Conciliation Officer concerned. I have perused the copies of the disputed settlements and also, the evidence produced by the parties. All these setalments are in the, form prescribed for the purpose. The copies of than were sent to the State Govt, the Labour Commr, the Asst Labour Commr and the Conciliation Officer concerned. On behalf of the, management, mw1 Vinayaka Sundaram, the managing partner of the concern was examined. He has stated in detail, the manner in which the settlements were executed and the persons to whom the copies were sent. the evidence for the workmen WW. 2 to WW. 10 was only to prove that the said settlements were fraudulent and the executants signed them without knowing the contents thereof. Those allegations have been disbelieved by the labour Court, and in my opinion very rightly. Most of those settlements were executed before the Sub-Registrar of Bangalore. It is unthinkable that the workmen signed those settlements blindly without knowing the contents thereof. None of those witnesses have stated that the copies of the settlements have not been sent to the, authorities mentioned under rule 59 of the Rules and also in the manner provided, therein. I therefore hold that the Labour Court was right in holding that all the settlements were binding on the, executants and they had been entered into voluntarily and also in accordance with the, provisions of Rule 59 of the rules. ( 14 ) IT was next urged by Sri Subba Rao that the Labour Court ought to have examined the settlements to find out whether they were fair and reasonable in the circumstances. In support of the contention, Counsel relied upon the decision of this Court in maria Soans v. Commonwealth hosiery Factory ,1968 (2) LLJ 433 at Page 439= (1967) 1 Myslj. 453. and in, particular, the following observation : " It is now well settled rule that an award can be based even upon a settlement entered into beween the management and one of the two unions, where the settlement appears to be fair and reasonable. " that was a case where a setalment was reached :between the Union and the management pending, disposal of an adjudication of dispute betore the inaustrial Tribunal and the Labour Court passed ia'awwerd on the basis of the settlement. In that coatext this Court made the abov abrovetion that an award can 'be based even on to be far. " that was a case where a setalment was reached :between the Union and the management pending, disposal of an adjudication of dispute betore the inaustrial Tribunal and the Labour Court passed ia'awwerd on the basis of the settlement. In that coatext this Court made the abov abrovetion that an award can 'be based even on to be far. and reasonable. But that principale cannot be applied to the settlements of 27 workman in list IV of the order of refrence The Labour court was not called upon in the present case to make an award. on the basis of those settlements. The Labour Court was required- to consider whether the said settlements were valid and binding on the executants. Mr, Subba Rao in this. contextcontended. that the decision, in Maria soan's case (8) would alleast govern the: case of 29 other workmen who entered into settlements during, the pendency, of the dispute before the labour doust. But the difficulty, in accepting the argubment is that the union in their. ," claim statment did not even chalilnge the validily of : these setllements, The Labour Court. however, has recorded a finding that those settlements were in accordance with the provisions of Rule 59 of the rules and therefore they, were binding on the executants. I have held earlier that that finding was correct and justified on the evidence on record. The said settlements being binding on them they were obviously" hot entitled to reinistatement. I, therefore Set. no ground to interfere with the award of the Labour Court. ( 15 ) IN the result, the petition fals and is dismisssed but in the circumstances, no order as to costs. --- *** --- .