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1976 DIGILAW 121 (KER)

J. Thomas Co. v. Government of Kerala

1976-07-05

G.VISWANATHA IYER, V.B.ERADI

body1976
JUDGMENT V. Balakrishna Eradi, J. 1. This appeal is directed against the judgment of our learned brother Chandrasekhara Menon, J. allowing O.P. No. 4826 of 1975 and quashing the order Ext. P-1 dated 3rd October 1975 passed by the State Government in purported exercise of the powers conferred by section 10 (1) (d) of the Industrial Disputes Act, 1947 (hereinafter called the Act) directing that an industrial dispute that was said to exist between the petitioner herein” Messrs. J. Thomas and Co., (Private) Ltd. - and its workmen be referred for adjudication to the Industrial Tribunal, Calicut. 2. In respect of the matters mentioned in the Annexure to Ext. A there was a settlement entered into between the petitioner-Company and the union represented by the third respondent herein as per the memorandum of settlement evidenced by Ext. P-2 dated 1st August 1972. The terms of that settlement were to be binding on the parties for a period of three years from 1st April 1972 and even thereafter they were to continue to be so binding on them until the expiry of two months from the date of issuance of a notice in writing intimating the intention to terminate the settlement. On 1st April 1975 the third respondent-Union issued to the petitioner-Company the notice Ext. P-3 purporting to terminate the settlement evidenced by Ext. P-2. That was later followed up by a memorandum of demands served by the third respondent on the petitioner-Company on 27th May 1975 as per Exts. P-4 and P-4 (a). It is unnecessary to refer in detail to the other correspondence that passed between the parties and it would suffice to say that the management had also issued a notice to the workmen under section 9 (a) of the Act proposing to bring about some changes in their conditions of service. On the basis of a letter addressed by the third respondent-Union to the District Labour Officer, Always as per Ext. R-5 dated 25th June 1975 the said officer issued a notice to the management on the same day as per Ext. R-6 convening a conference on 18th July 1975 for discussion of the matters arising from the letter sent by the union. The first of such discussions was held before the District Labour Officer on 18th July 1975 and Ext. R-8 is a copy of the minutes of the said discussion. R-6 convening a conference on 18th July 1975 for discussion of the matters arising from the letter sent by the union. The first of such discussions was held before the District Labour Officer on 18th July 1975 and Ext. R-8 is a copy of the minutes of the said discussion. Subsequently there were further meetings held in the presence of the District Labour Officer on 7th August 1975, 23rd August 1975, 25th August 1975 and 5th September 1976. It would appear that on 5th September 1975 the District Labour Officer formed the opinion that the negotiations have failed and it was not possible to arrive at a settlement. 3. On 15th September 1975, 25 out of the 43 members of the petitioner staff sent to the District Labour Officer a joint letter signed by all of them, with copies to the management and the third respondent-Union, wherein it was stated that the majority of the employees of the petitioner-Company are not members of the third respondent-Union, and that they had only just then come to understand that the third respondent-Union had placed a memorandum of demands to the management for the revision of the terms and conditions of the service of the employees and that the last conference held by the District Labour Officer on the 5th September had ended in failure. In the circumstances the District Labour Officer was requested by the letter to convene another meeting to which the employees sending the letter may also be invited to attend so that in case the third respondent-Association was not prepared to come to a settlement an opportunity may be available to those employees to enter into a settlement with the management in the course of the conciliation proceedings. On 19th September 1975 the petitioner-Company addressed a communication to the District Labour Officer as per Ext. P-6 drawing the latter attention to the letter sent by the majority of the members of the staff and pointing out that the notice of termination of the earlier settlement which was purported to be given by the third respondent-Association did not meet the requirements of section 19(7) of the Act, inasmuch as it was clear from the said letter that the union did not represent the majority of the members of the staff. The petitioner-Company therefore requested the District Labour Officer in Ext. The petitioner-Company therefore requested the District Labour Officer in Ext. P-6 to take the said aspect also into account before proceeding further in the matter. No reply was sent by the District Labour Officer to the petitioner-Company in response to Ext. P-6. On 3rd October 1975 the Government passed the order Ext. P-1 referring the dispute to the Industrial Tribunal, Calicut. 4. The main contention put forward by the petitioner- Company in the O. P. was that so long as the settlement validly entered into between the company and its employees was in force it was not open to the State Government to refer for adjudication any dispute concerning the matters covered by such settlement. On this basis it was argued that the order Ext. P-1 passed by the State Government is liable to be struck down as illegal and without jurisdiction. This argument was sought to be met by the counsel appearing for the third respondent-Union by contending that the petitioner-Company had by its conduct waived whatever right it had under the Act to have the settlement treated as binding and that by reason of such conduct the petitioner-Company was also estopped from putting forward the contention that the settlement evidenced by Ext. P-2 continues to be in force. Another plea put forward by the third respondent before the learned Single Judge was that the letter Ext. P-5 would not, by itself, be sufficient to show that the operation of the settlement evidenced by Ext. P-2 had not been validly terminated by the notice Ext. P-3 inasmuch as even from the recitals of Ext. P-5 it would appear that the workmen who had written that letter were also thinking in terms of entering into a fresh settlement. The learned Single Judge rejected the first of the above contentions advanced on behalf of the third respondent and held that there could be no waiver of the requirements of the statutory provisions regarding notice contained in sub-section (7) of section 19 of the Act. As regards the plea of estopped put forward by the third respondent the learned Judge has not recorded any definite finding and the matter has been left open, even though it has been observed by the learned Judge that his inclination was to uphold the plea put forward by the third respondent. The last point urged by the third respondent, namely, that on the basis of Ext. The last point urged by the third respondent, namely, that on the basis of Ext. P-5 it could not be said that a termination of the earlier settlement evidenced by Ext. P-2 had not been brought about by the notice Ext. P-3 issued by the third respondent-Union appealed to the learned Judge as correct and sound. Accepting the said contention the learned Judge has entered a finding that there was a valid termination of the agreement evidenced by Ext. P-2 by virtue of the notice issued by the third respondent-Union on 1st July 1975. It is on the basis of the said finding that the learned Judge overruled the petitioner contention that the Government acted illegally and without jurisdiction in referring the dispute for adjudication as per the order Ext. P-1 and dismissed the writ petition. 5. Even though learned and elaborate arguments have been addressed before us by counsel for both sides on the question whether there was a valid termination of the agreement evidenced by Ext. P-2 by virtue of the notice issued by the third respondent-Union as per Ext. P-3 dated 1st April 1975 we do not consider it appropriate that this court should express any final opinion on the said matter at this stage. The relief claimed in this writ petition is that the Government order Ext. P-1 should be quashed and hence all that this court is concerned is to find out whether in referring the dispute for adjudication on the basis of the materials available before it the State Government can be said to have acted illegally or without jurisdiction. There is nothing on the record to show that the Government was even aware of the letter Ext. P-5 sent to the District Labour Officer by the 25 out of the 43 members of the petitioner staff on 15th September 1975 or the company letter to the officer requesting whether there had been a valid termination of the earlier settlement by the notice given by the third respondent in view of the facts disclosed in Ext. P-5 that the third respondent did not represent the majority of the members of the staff. It would appear that the failure report had been already sent to Government by the District Conciliation Officer prior to the receipt by him of the letter Ext. P-5. No supplementary report was submitted by him to the Government after receiving Exts. P-5 that the third respondent did not represent the majority of the members of the staff. It would appear that the failure report had been already sent to Government by the District Conciliation Officer prior to the receipt by him of the letter Ext. P-5. No supplementary report was submitted by him to the Government after receiving Exts. P-5 and P-6. Such being the circumstance we cannot find fault with the Government for having referred the dispute for adjudication by the Industrial Tribunal, Calicut on the basis of the materials that were available before, them. What we have said above does not however mean that the petitioner should not have an opportunity to have the aforesaid question duly gone into. We consider that the more satisfactory course would be to direct the said question to be enquired into by the Industrial Tribunal itself which will be in a position to conduct a thorough investigation into the matter after taking evidence. The finding entered by the learned Single Judge that a termination of the settlement Ext. P-2 had been validly brought about by the notice Ext. P-3 will, therefore, stand vacated. The said question is left open to be decided by the Industrial Tribunal wholly on the basis of the materials to be placed before it by both sides untrammelled by any observations contained either in the judgment of the learned Single Judge or in this judgment. There will be a direction to the Industrial Tribunal, Calicut that the question whether the settlement evidenced by Ext. P-2 has been validly terminated by the notice Ext. P-3 issued by the third respondent-Union and whether there can be a valid dispute to be adjudicated upon by it inclusive of the ancillary question of the plea of estoppel put forward by the third respondent should be taken up for consideration by it as a preliminary issue in the case and it should not proceed to adjudicate upon the merits of the dispute until after the preliminary issue is decided. 6. The judgment of the learned Single Judge is accordingly set aside and the writ appeal is disposed of with the above directions. The parties will bear their respective costs.