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Gauhati High Court · body

2005 DIGILAW 662 (GAU)

Tripura Jute Mills Ltd. v. State of Tripura

2005-09-09

A.B.PAL

body2005
JUDGMENT A.B. Pal, J. 1. By this writ proceeding under Article 227 of the Constitution, the Tripura Jute Mills Ltd. (herein after referred to as the TJML), a company registered under the Company Act, 1956, has assailed the judgment dated 31.7.1995, passed by the learned Presiding Judge of the Industrial Tribunal, Tripura in an industrial dispute in Labour Court Case No. 3 of 1991 directing that the workmen, who individually, with permission of the learned Tribunal, became party in the said industrial dispute, shall be entitled to back wages from the date of their termination till the date of their reinstatement in service with interest thereon @ 12% per annum. 2. I have heard Mr. S. Deb, learned senior counsel, assisted by Mr. G.S. Das, learned Counsel for the Petitioner and Mr. S. Talapatra, learned senior counsel as well as Mr. P. Roy Barman, learned Counsel for the private Respondents. 3. The material facts giving rise to the present controversies need to be ascertained at the outset before adverting to the questions that have been raised in the present writ petition. The TJML terminated from its service 260 workmen in the year 1989 and 1990 whereupon the Tripura Chatkal Karmi Samity (for short TCKS), a registered Union of the said company unsuccessfully approached the Labour Commissioner for reinstatement of 182 workmen so terminated, whom the Union represented. Thereafter, the Union approached this Court in Civil Rule No. 253 of 1990, which was disposed of on 11.4.1991 with a direction by a Division Bench of this Court that the said Union on behalf of the workers it represents may raise an industrial dispute before the Labour Commissioner for conciliation, failing which the Labour Commissioner shall refer the dispute to the Government of Tripura for making a reference of the dispute to the Tribunal. Following that order of this Court, the Labour Commissioner entered into conciliation proceeding for settlement of the dispute under the Industrial Disputes Act, 1947 (for short the Act), but all efforts and deliberations for an amicable settlement notwithstanding, the dispute continued to exist and thereafter, in terms of the direction of this Court, as noted above, the State Government by notification dated 18th September, 1991 referred the dispute to the Industrial Tribunal for adjudication of the same. The points of dispute referred to the said Tribunal are noted below: (1) Whether the termination/struck off/suspension/retrenchment of the workers by the Management of the Tripura Jute Mills Ltd. as mentioned by the Samiti is legal and justified? (2) If so, to what extent the workmen are entitled to get relief? (3) What other relief, if any, they are entitled to? 4. During pendency of the proceeding before the said Industrial Tribunal, the State Government constituted a review committee to go into the circumstances leading to termination of those workmen and recommend on the question of their reinstatement. The review committee after due deliberations and consideration of the attending circumstances recommended reinstatement of all the 260 workmen and following that recommendation, the board of Directors of the TJML resolved that all such workmen would be reinstated w.e.f. 1.1.1994 on condition that they would not claim back wages during the period they were out of service. The TJML thus arrived at an amicable settlement with those workmen, who were required to give an undertaking that they would not claim back wages on their reinstatement, but out of 260 only 210 workmen gave their undertaking and the rest of them refused to give such undertaking though they accepted their reinstatement. Following the reinstatement of all the 260 workmen, the said union representing 180 workmen filed a petition on 30.3.1994 before the Industrial Tribunal for disposal of the proceeding before it as not pressed on the ground of amicable settlement of the dispute between the parties, but that petition was not accepted by the Tribunal as some of those workmen, who refused to give an undertaking individually approached the learned Tribunal to accept them as party to the proceeding and continue the proceeding to its logical conclusion. By order dated 25.6.1994, the learned Tribunal observed that though all the workmen have been reinstated without any back wage and the General Secretary of the Union by a petition dated 30.3.1994 urged the learned Tribunal for disposal of the proceeding the dispute being amicably settled out side the Court, the issue regarding back wages was yet to be settled and some of the workmen, who dissociated from their Union applied for becoming party to the dispute relating to back wages and after such observation, the learned Tribunal allowed the individual workman to become party to the proceeding and decided to proceed with the dispute rejecting thereby the prayer of the General Secretary, TCKS for termination of the proceeding. By the said impugned order dated 31.7.1995, the learned Tribunal further held that the undertaking obtained from the workmen reinstated to the effect that they would not claim back wages for the period between their termination and reinstatement, is unfair and that only those 56 workmen, who individually participated in the proceeding claiming back wages are entitled to the benefit of their back wages for the period between their termination and reinstatement with interest @ 12% per annum making it clear thereby that all other workmen, who on reinstatement gave the undertaking not to claim the back wages like those 56 workmen but preferred not to be party in the said industrial dispute, shall not be entitled to similar benefit. Aggrieved, the TJML has preferred the present writ petition. 5. The grievance of the TJML, the Petitioner herein, as could be deciphered from the pleadings advanced are (i) The learned Tribunal by the impugned judgment and order proceeded to decide the dispute without any reference being made by the State Government as has been admitted in the said impugned order that after the settlement of the dispute between the TJML and the TCKS no further reference was made by the State Government for settlement of any dispute between TJML and any individual workman. (ii) In Civil Rule No. 253 of 1990, this Court by order dated 11.4.1991 directed the State Government that on failure of the conciliation proceeding by the Labour Commissioner, the State Government shall refer the dispute between the TJML and the TCKS to the Industrial Tribunal. (ii) In Civil Rule No. 253 of 1990, this Court by order dated 11.4.1991 directed the State Government that on failure of the conciliation proceeding by the Labour Commissioner, the State Government shall refer the dispute between the TJML and the TCKS to the Industrial Tribunal. But even though by an out of Court settlement the dispute pending before the said Tribunal was amicably settled and prayers from both the parties were accordingly placed for termination of the proceeding, the learned Tribunal proceeded to decide a non existent dispute without jurisdiction. (iii) The Respondents No. 4 to 13 herein applied for joining and contesting in the proceeding individually, which was allowed by the learned Tribunal and such an act permitting an individual to join in a dispute between TJML and TCKS without any reference from the State Government is not permissible in law. (iv) The learned Tribunal lost jurisdiction after the TCKS had applied for withdrawal of the dispute and termination of the proceeding. (v) On 2.8.1994, fifteen workmen applied for being impleaded in the proceeding before the learned Tribunal through their Advocate Mr. P. Roy Barman. Again on 4.8.1994, similar prayer was filed by four workmen through their counsel Shri S. Talapatra. On the same day, ten more petitions were filed by the workmen for being impleaded and they were represented by learned Counsel Mr. P. Roy Barman. All those prayers were accepted illegally by the learned Tribunal without considering relevant provision of the Industrial Disputes Act. (vi) The TJML is a sick industry, but the learned Tribunal being biased burdened it with an unreasonable and unjust financial liability by granting back wages to the workmen, which was not an issue before it. (vii) The TCKS represented 90% of the employees serving in the TJML and, therefore, it being the representative body of almost all the employees, the settlement was arrived at by TJML with TCKS in accordance with which all the 260 workmen were reinstated subject to the condition that they would give an undertaking that they would not claim back wages for the period they were out of employment as that would sound death knell to the existence of the industry itself. (viii) The learned Tribunal acted illegally by fixing 18.2.1995 and 24.3.1995 for taking evidence and then proceeding to deliver the judgment on 31.7.1995 without taking evidence on those two dates. 6. (viii) The learned Tribunal acted illegally by fixing 18.2.1995 and 24.3.1995 for taking evidence and then proceeding to deliver the judgment on 31.7.1995 without taking evidence on those two dates. 6. It may be noticed here that out of 60 Respondents herein only one, the eleventh Respondent, who is an individual workman, filed counter affidavit while others, without filing any written reply contested the prayer of the TJML through their respective counsels. 7. In the counter-affidavit filed by the eleventh Respondent, the contention advanced is that the National Industrial Tribunal being an appellate authority under Section 7(b) of the Industrial Disputes Act, the writ petition filed by the TJML is not maintainable as the alternative remedy by way of appeal has not been exhausted. It has further been contended that the answering Respondent did not give any undertaking to the effect he would not claim back wages for the period he was out of employment though he had accepted the reinstatement and entered into the service again. Though the order of reinstatement was conditional one, he refused to sign the undertaking. 8. In the impugned judgment and order, the learned Tribunal made several observations, which may be noted in brief in order to appreciate the challenge to it built in the writ petition. The observations are noted below: (a) During the pendency of the dispute before the Industrial Tribunal, an amicable settlement was arrived at between the parties following which the Petitioners workmen submitted their joining report on 3.1.1994 after giving undertaking as desired by the Management and it has been mentioned in the undertakings that they would not claim back wages, salary, bonus etc. for the period between their termination and reinstatement. (b) Inspite of such an amicable settlement unfortunately some of the members of the said Union (TCKS) resisted the movement of the Secretary of the TCKS and submitted a petition denying the said settlement and expressed their willingness to contest the reference by filing separate vokalatnama. That petition was heard by the Presiding Judge (Shri S.R. Sinha) on 25.6.1994 and disposed of the petition of the Secretary of the TCKS. It was decided that reference would continue for adjudication. That petition was heard by the Presiding Judge (Shri S.R. Sinha) on 25.6.1994 and disposed of the petition of the Secretary of the TCKS. It was decided that reference would continue for adjudication. (c) On 24.4.1994, the TJML filed a petition before the learned Tribunal that after amicable settlement no dispute did exist and that individual workman has no locus standi to continue with the reference which was in between the TJML and TCKS. (d) The undertaking, which was obtained from the retrenched employees as a condition precedent for reinstatement is not fair because it was obtained as desired by the Management, which was a powerful entity while the workmen were poor and had to sign the undertaking under compelling circumstances. The undertaking was in English and the workers might not have understood the consequence of signing such an undertaking which in effect deprived them from the benefit of back wages. (e) No leave of the Tribunal was obtained before the parties to the dispute made a settlement out side the Court. (f) The TJML, instead of justifying the termination of the workmen pleaded that the dispute did not survive because of the settlement outside the Court. At no reason was shown justifying the order of termination, the order teminating 260 employees is illegal, arbitrary and violative of Section 25(f) and 25(g) of the Industrial Disputes Act. Consequently, all the workmen represented by Mr. P.R. Barman and Mr. S. Talapatra are entitled to the back wages. 9. Of the several questions that have fallen for consideration, the first and foremost is whether the reference to the Industrial Tribunal survived after amicable settlement of the dispute between the parties out side the Court? 10. The argument advanced by Mr. Deb, learned senior counsel for the TJML is that the learned Tribunal most arbitrarily proceeded to decide the dispute regarding claim of back wages without any reference of such dispute to it and when no such dispute did at all exist. The dispute as had been referred to the learned Industrial Tribunal is to be understood in terms of the direction of this Court in Civil Rule No. 253 of 1990 following which the State Government made the reference to the Industrial Tribunal. The dispute as had been referred to the learned Industrial Tribunal is to be understood in terms of the direction of this Court in Civil Rule No. 253 of 1990 following which the State Government made the reference to the Industrial Tribunal. The relevant part of the direction of this Court may be profitably reproduced below: Let the Petitioner, on behalf of all the workers who are its members, raise an industrial dispute by stating the entire facts before the Labour Commissioner-cum-Conciliation Officer who will conclude conciliation most expeditiously and in case conciliation fails he shall refer the dispute to the Govt. of Tripura, department of Labour. All these shall not exceed 2 months and the Govt. of Tripura, Labour Department shall pass appropriate order on the question of making reference of the dispute to the Tribunal, Labour Court. The Govt. of Tripura, Department of Labour, shall make the decision within 2 months from the date of receipt of the report from the Conciliation Officer. (Emphasis supplied) It may be noticed here that the TCKS only has been permitted to raise an industrial dispute on behalf of the workers who are its members meaning thereby the other workers who were not the members of the said Union are not covered by this order. Following this direction of this Court, the State Government in strict compliance thereof referred the dispute to the industrial Tribunal and the operative portion of the said order being significant because of its linkage with the order of this Court is noted below: Now, Therefore, in pursuance of the aforesaid order of the Hon'ble Gauhati High Court, Agratala Bench and in exercise of the powers conferred by Clause (d) of Sub-section (1) of Section 10-read with Sub-section (5) of Section 12 of the Industrial Disputes Act, 1947, the State Government is pleased to refer the said dispute to the Industrial Tribunal constituted under Sub-section (1) of Section 7A of the Industrial Disputes Act, 1947 through Notification No. F25(8)/LAB/74/1754-57 dated 6.6.1985 published in the Tripura Gazette, Extra-ordinary Issue, July 2 1985 A.D. for adjudication of the points specified in the schedule below: 11. What is an industrial dispute is to be understood in terms of the definition given in Section 2(k) of the Industrial Disputes Act, 1947 (for short the Act). What is an industrial dispute is to be understood in terms of the definition given in Section 2(k) of the Industrial Disputes Act, 1947 (for short the Act). In order to appreciate the scope and ambit of this item in the present context, Section 2(k) may be quoted below which reads: 2(k). Industrial dispute means any dispute or difference between employers and employers 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 of any person. This being the definition of 'industrial dispute', the question that crops up in the present proceeding is whether such a dispute concerning an individual workman, whose cause was espoused by a Union can continue to be a dispute even after the Union has entered into an agreement with the employer for an amicable settlement. In Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal, Patna, reported in AIR 1961 SC 857 , the Supreme Court dealt with this issue thus: When a dispute concerning an individual workman is taken up by the Union, of which the workman is a member, as a matter affecting workmen in general and on that basis a reference is made under the Industrial Disputes Act the individual workman cannot ordinarily claim to be heard independently of the Union. In this respect it is necessary and proper to take note of the fact that when an individual workman becomes a party to a dispute under the Industrial Disputes Act he is a party not independently of the Union which has espoused his cause. In such a matter, the ordinary rule should be that such representation by an officer of the trade union should continue throughout the proceedings in the absence of exceptional circumstances which may justify the Tribunal to permit other representation of the workman concerned. 12. In such a matter, the ordinary rule should be that such representation by an officer of the trade union should continue throughout the proceedings in the absence of exceptional circumstances which may justify the Tribunal to permit other representation of the workman concerned. 12. It is not in dispute that in the case on hand the TCKS representing 90% of the workmen of the Jute Mills espoused the case of all the workmen whose services were terminated by the TJML in the year 1989 and 1990 and following a settlement between the TJML and TCKS, the employer and the Union of the workmen, an agreement was forged following which all the 260 retrenched workmen were reinstated subject to the condition that none of them would claim back wages for the period during which they were out of service. The ratio laid down by the Supreme Court in Ram Prasad Vishwakarma (supra) has been reaffirmed in P. Virudhachalam v. Management of Lotus Mills, reported in (1998) 1 SCC 650 . The observation of the Supreme Court in Ram Prasad Vishwakarma (supra) has been reiterated in the latter case in the following language: It is now well settled that a dispute between an individual workman and an employer cannot be an industrial dispute as defined in Section 2(k) of the Industrial Deputes Act unless it is taken up by a Union of the workmen or by a considerable number of workmen. In Central Provinces Transport Service Ltd. v. Raghunath Gopal Patwardhan. Mr. Justice Venkatarama Ayyar speaking for the Court pointed out after considering numerous decisions in this matter that the preponderance of judicial opinion was clearly in favour of the view that a dispute between an employer and a single employee cannot per se be an industrial dispute but it may become one if it is taken up by a Union or a number of workmen. It has been further observed that Section 36 of the Act recognizes this position by providing that the workman, who is a party to the dispute, shall be entitled to be represented by an officer of a registered trade union of which he is a member. It has been further observed that Section 36 of the Act recognizes this position by providing that the workman, who is a party to the dispute, shall be entitled to be represented by an officer of a registered trade union of which he is a member. On the anvils of the above ratio it is to be noticed that in the case on hand the Respondents-workmen have individually entered appearance before the learned Tribunal with the prayer to continue with the dispute which was allowed by the Court to be raised by the TCKS and which was referred to the Tribunal by the State Government in terms of the order of this Court. No fresh dispute between individual workman and TJML was referred to the Tribunal and the Respondent-workmen were not allowed by this Court to join individually in the proceeding before the Tribunal to decide the dispute between TJML and TCKS. 13. It has been strenuously urged by the learned Counsels for the Respondents workmen that the settlement in question having not been in terms of Section 12(3) of the Act, it cannot be said that the industrial dispute did not survive after the settlement between the TJML and TCKS. Section 12(3) provides: 12(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government [or an officer authorized in this behalf by the appropriate Government] (a) together with a memorandum of the settlement signed by the parties to the dispute. Mr. Roy Barman advanced another argument that the settlement in question is not in terms of the definition of Section 2(p) of the Act and because of that reason the dispute still survived the settlement between TJML and TCKS, particularly in relation to the back wages of the workmen. Section 2(p) of the Act, which defines 'settlement' maybe quoted below: 2(p) 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 agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to [an officer authorized in this behalf by] (r) the appropriate Government and the conciliation officer. His further submission is that Rule 58 of the Act clearly provides how a settlement can be formally recorded and that procedure having not been followed in the present case, the settlement between the TJML and TCKS has no binding force on all the workmen including the Respondents workmen herein. 14. The discussions made above will make it abundantly clear that a dispute between an employer and an individual workman, whose cause was espoused initially by the Union cannot continue to be an industrial dispute within the meaning of Section 2(k) of the Act after a settlement is arrived at between the employer and the Union as has been precisely happened in the case on hand. All the Respondents workmen who had filed an application for continuation of the dispute before the Tribunal have reapt the benefits of the settlement reached between the TJML and TCKS by accepting their reinstatement though one of the conditions of reinstatement as per the said settlement is that the workmen so reinstated cannot claim back wages. Such a settlement which is a package one cannot, therefore, be broken into two parts, namely (i) reinstatement and (ii) back wages as the former cannot have effect without the later. The workmen, who have accepted the benefits of the settlement by way of their reinstatement cannot go behind the settlement and challenge the same only for the purpose of claiming back wages. If they challenge the settlement, the very foundation of their reentry into service is lost and consequently, the claim of back wages must also wither. In other words, the workmen, who have accepted reinstatement following the settlement, have no locus standi to question the validity of the same before the Tribunal to whom no reference of any industrial dispute between the TJML and any individual workmen was ever referred to. 15. This position maybe examined from another angle when considered how an industrial dispute can be referred to a Board, Court or a Tribunal. Section 10(1)(d) of the Act is the relevant provision, which provides as follows: 10(1)(d). 15. This position maybe examined from another angle when considered how an industrial dispute can be referred to a Board, Court or a Tribunal. Section 10(1)(d) of the Act is the relevant provision, which provides as follows: 10(1)(d). where the appropriate 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, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication. Sub-section (4) of Section 10further provides: 10(4). Where in an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, [the Labour Court or the Tribunal or the National Tribunal, as the case may be], shall confine its adjudication to those points and matters incidental thereto. Thus an industrial dispute can be referred to the Tribunal only by the appropriate Government and the Tribunal shall confine adjudication to the points specifically referred to. In the case on hand, the State Government following a direction from this Court referred an industrial dispute between the TJML and TCKS only, not between the TJML and any individual workman, and, therefore, by allowing the dispute to continue converting it into a dispute between the TJML and a group of workmen after the settlement between the TJML and TCKS, the learned Tribunal has acted, in my considered view, in violation of Sub-section (4) of Section 10, as noted above. In the impugned judgment, the learned Tribunal has made specific observation that the employer and the Union have approached in writing that the dispute referred to the Tribunal by the State Government has been amicably settled following which all the retrenched workmen have been reinstated and therefore, in view of such observation, the Tribunal ceased to have any jurisdiction to continue with the dispute by way of entertaining individual applications from some dissatisfied workmen to continue with the same. 16. The argument advanced by Mr. Talapatra and Mr. 16. The argument advanced by Mr. Talapatra and Mr. Roy Barman that the settlement in question between the TJML and TCKS is not in terms of the settlement within the meaning of Section 2(p) of the Act, is of no relevance as none of the parties to the settlement has raised any question to that effect and the individual workmen, in favour of whom such a question has been raised, are precluded to raise that question firstly because they have accepted their reinstatement which is the vital part of the said settlement. That apart, the settlement being not in question raised by any of the parties to the dispute in the present proceeding, a copy of the same has not been made available for examination by this Court its technical vulnerability as sought to be canvassed by the learned Counsels. 17. Several citations have been sought to be pressed into service in order to bring home the respective points by the learned Counsels for the parties and most of those decisions appear to me not relevant for the purpose of adjudication of the issues, which I have discussed above. Those decisions are- (i) AIR 1965 SC 1803 , (ii) (1981) 3 SCC 493, (iii) (1976) 4 SCC 736 and (iv) (1986) 3 SCC 156 . It is not necessary to burden this judgment by quoting the portions sought to be relied as in my view, those are not of much relevance in the context of the present case. 18. Following the discussions made above, I am of the considered view that the learned Tribunal has acted without jurisdiction by continuing with the proceeding when the dispute referred to by the Sate Government following the direction of this Court had ceased to exist following a settlement between the TJML and TCKS. The Tribunal has acted illegally by entertaining the dispute raised by the Respondents workmen individually as no dispute between the TJML and individual workmen was ever referred to the Tribunal by the State Government. The Tribunal has also acted illegally by granting the benefit of back wages only of those workmen who have individually made applications to it for continuing the dispute violating thereby the relevant provisions of the Act as noted above. The Tribunal is wrong in holding that for amicable settlement of a dispute outside the Court prior permission of the Tribunal is necessary. The Tribunal is wrong in holding that for amicable settlement of a dispute outside the Court prior permission of the Tribunal is necessary. No provision in support there of could be cited. The impugned judgment and order is, therefore, liable to be set aside, which I hereby do. Accordingly the instant writ petition stands closed leaving the parties to bear their own cost.