Judgment By consent, heard finally. The Background events are: 2 On 16 April, 2002, Erstwhile PCD Unit of NOCIL (formerly National Organic Chemicals Ltd.) practically closed due to financial difficulties. 3 On 20 March, 2003, a Closure permission was granted by the State Government to NOCIL under Section 25O of the Industrial Disputes Act, 1947 (for short, the ID Act), but this was set aside by consent before the High Court and the matter was remanded. Later, the permission was once again granted on 20 March 2003. On 31 January 2004, the Industrial Tribunal set aside closure permission under Section 25-O(5). Writ Petition No.5046 of 2004 filed by NOCIL to challenge Industrial Tribunal's order was admitted and pending. NOCIL had also filed a Company petition for demerger of the PCD Unit from the Company, which is also pending. 4 On 11 September, 2004, a Tripartite memorandum of understanding (MOU) between NOCIL, the unions (NOCIL Employees' Union and PIL Employees Union), and Relene Petrochemicals Ltd for take over of PCD Unit (Relene). The MOU provided that NOCIL would offer VRS to all its employees (Plan “A” or Plan “B”), after which Relene would offer fresh employment subject to medical fitness as well as successful completion of institutional/residential training. 5 On 23 September 2004, some employees including the Petitioners took VRS Plan A and ceased to be an employee of NOCIL and thereafter applied for fresh employment with the Respondent Company subject to being declared medically fit. On being declared medically unfit the Petitioners were given the benefits of VRS Plan B, amounting to Rs.4.5 lakhs. They recovered it also. In 2004, Writ Petition No.5046 of 2004 was disposed of in terms of tripartite MOU dated 11 September, 2004. 6 On 4 January 2005, early separation Plan was declared by the Respondent Company for the purpose of rightsizing its labour force in the erstwhile PCD Unit of NOCIL. 7 On 5 January, 2005, a strike notice was issued for demands raised by the recognised union in respect of dismissed workmen and medically unfit ex-workmen of NOCIL. The demands were admitted in Conciliation and proceedings went on before the Deputy Labour Commissioner and Conciliation Officer. 7 On 5 January, 2005, a strike notice was issued for demands raised by the recognised union in respect of dismissed workmen and medically unfit ex-workmen of NOCIL. The demands were admitted in Conciliation and proceedings went on before the Deputy Labour Commissioner and Conciliation Officer. 8 On 14 January, 2005 a letter was issued by one Shri Prasad Tokekar clarifying that there was no substance in rumours that the management would grant additional financial compensation at a later date and assuring that if any additional financial compensation is offered to dismissed employees or to those who opt for separation later, the same will be offered “to those who take benefit of the instant Early Separation Plan, as well as those who have separated earlier under NOCIL VRS Plan B.”. 9 Admittedly, on 18 June, 2005, a conciliation Settlement signed under Section 12(3) read with 18(3) by which the recognised union and company agreed that a full and final increase of Rs. 2.34 lac per workman would be paid over and above VRS Plan A and VRS Plan B given by NOCIL. By this tripartite Conciliation Settlement, all workmen, whether they had taken both VRS Plans A & B, or had taken VRS Plan A and opted for employment with Relene, or had been found medically unfit or had been dismissed for non-participation in training, were brought on par by being paid a gross total of Rs. 6 lacs, minus the amount of VRS already received. Thus, those who had taken Plan A and B received a top-up amount of Rs.2.34 lac to bring their total to Rs.6 lac, while those who had not taken VRS earlier, were paid the full amount of Rs. 6 lac. 10 On 13 July, 2005, pursuant to applications dated 18.6.2005 and undertakings given by the Petitioners received Rs. 2.34 lac as per Conciliation Settlement dated 18.6.2005. Similarly, all others covered by 18.6.2005 Settlement received their respective amounts in June-July 2005. 11 On 15 November 2006, almost one and a half years later, Respondent Company and the recognised union arrived at a MOU by which they agreed that the erstwhile PCD Unit be shifted to other locations along with its workmen, and that in case any workmen were not willing to shift with protection of service conditions and improvement of benefits, then such workmen by offered a fresh VRS. 12 On 5 December, 2006, a settlement signed between Recognised Union and Respondent in terms of MOU dated 15.11.2006, agreeing to the shifting of PCD Unit along with its workmen, and the amount of VRS to be offered to those workmen who were unwilling to shift. 13 In 2008, Petitioner and some other ex-employees of NOCIL raised industrial disputes claiming that they should receive additional payments on para with VRS given under the Settlement dated 5 December, 2006, and these disputes were referred to adjudication. 14 On 22 June, 2010, Statement of Claims filed by Petitioner in Ref. (IT) No.59 of 2009. A written statement filed by the Respondent Company. On 29 January 2011, evidence of Petitioner by way of affidavit and cross-examination thereon. On 24 November, 2011, the Industrial Tribunal's common Award in similar class of cases rejected the Reference on the grounds that (a) the references were not maintainable in the cases of those ex-employees of NOCIL who were found medically unfit and thereby never became employees of the Respondent Company; (b) the references were not maintainable in the cases of those dismissed workmen like the Petitioner who had accepted payments under the Conciliation Settlement dated 18.6.2005; (c) all claims of these workmen stood finally satisfied by the said Settlement dated 18.6.2005 and they had no subsisting dispute thereafter and (d) the Conciliation Settlement dated 18.6.2005 clearly superseded the prior assurance contained in the letter dated 14.1.2005. 15 The relevant provisions of ID Act are as under: “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. 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] the appropriate Government and the conciliation officer. 2(s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person – (I) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (II) who is employed in the police service or as an officer or other employee of a prison, or (III) who is employed mainly in a managerial or administrative capacity, or (IV) who, being employed in a supervisory capacity, draws wages exceeding [Ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. 18 Persons on whom settlements and awards are binding. (1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. [Provided that, where there is a recognised union for any undertaking under any law for the time being in force, than such agreement (not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee) shall be arrived at between the employer and the recognised union only; and such agreement shall be binding on all persons referred to in clause © and clause (d) of subsection (3) of this section]. (2) Subject to the provisions of sub-section (3), an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. (2) Subject to the provisions of sub-section (3), an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. (3) A settlement arrived at in the course of conciliation proceedings under this Act [ or an arbitration award in a case where a notification has been issued under Sub-section (3A) of Section 10A] or [an arbitration award in case where there is a recognized union for any undertaking under any law for the time being in force] or [an award [of a Labour Court, Tribunal or National Tribunal] which has become enforceable] shall be binding on – (a) all parties to the industrial dispute; (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, [arbitrator], [Labour Court, Tribunal or National Tribunal], as the case may be, records the opinion that they were so summoned without proper cause; (c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates; (d) Where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.” 16 The point of reference was as under: “Shri Gajanan Gangaram Patil and others should be paid an amount of Rs.16,00,000/-as consequential difference between two VRS plans as per letter dt. 14.01.2005 of management as contained in workmen's letter dt. 19.01.2008 addressed to management.” Similar points were referred in all other Petitions. 17 The following issues were framed: “1 Whether the Reference is maintainable? 2 Whether the Second Party is a workman under Section 2(s) of I.D. Act, 1947? 3 Does the Second Party proves that the notice dt. 14.01.2009 (2005) is an agreement? If yes, does the second party proves that the first party has failed to implement the agreement dt. 14.01.2009 (2005)? 4 Whether the second party is entitled for the reliefs claimed? 5 What Award? The findings on the above issues are as under: 1 No. 2 No 3 In the Negative. 14.01.2009 (2005) is an agreement? If yes, does the second party proves that the first party has failed to implement the agreement dt. 14.01.2009 (2005)? 4 Whether the second party is entitled for the reliefs claimed? 5 What Award? The findings on the above issues are as under: 1 No. 2 No 3 In the Negative. 4 No 5 As per final Award.” Similar issues were framed in all the matters. 18 The relevant notice dated 14.01.2005 which is stated to be agreement is as under: “RPCL – Early Separation Plan Extended upto January 20, 2005 The early separation plan dated January 4, 2005 was displayed at the suggestion of Hon'ble Deputy Labour Commissioner and Conciliation Officer, Thane. Some employees have, indeed, taken benefit of the Plan. The Deputy Labour Commissioner and Conciliation Officer, Thane communicated to us yesterday that some of the employees/ex-employees (Those who were dismissed or are in employment) have approached him for requesting extension of the time by few days, as they need some more time to decide if they would like to take benefits of this plan. The Deputy Labour Commissioner and Conciliation Officer, Thane has further communicated that some of them and also some of the ex-employees of NOCIL who opted for VRS of NOCIL under Plan B have told him about rumors that the dismissed employees and some other on selective basis may be granted additional financial benefits in comparison with earlier cases. Authority has requested the Management to clarify the position. In response the request of Hon'ble Deputy Labour Commissioner, the management has decided to extend the last date for the Early Separation Plan to closing hours of January 20, 2005. It is further clarified that there is no substance in this rumor and there is no likelihood of management granting additional financial compensation to anyone opting for Separation at a later date or to those who have been dismissed. It is further clarified that there is no substance in this rumor and there is no likelihood of management granting additional financial compensation to anyone opting for Separation at a later date or to those who have been dismissed. The management hereby assures that in case any additional financial compensation is offered to any other employees who have been dismissed or those who opt for separation later, the same will be offered to those who take benefit of the instant Early Separation Plan, as well as those who have separated earlier under NOCIL VRS Plan B.” 19 The extract of Terms of Settlement dated 18 June, 2005 are as under: SETTLEMENT UNDER SECTION 2(P) READ WITH SECTION 18(3) OF THE INDUSTRIAL DISPUTES ACT, 1947 AND ALSO READ WITH SUB-RULE (4) OF RULE 62 OF THE INDUSTRIAL DISPUTES (BOMBAY) RULES 1957. Short Recital of the Case Whereas the PCD unit of NOCIL is managed by Relene Petrochemicals Private Limited (herein after referred as RPCL) and is formalized vide an agreement dated September 29, 2004. Whereas a Tripartite MoU was signed between NOCIL, RPCL, NOCIL employees union and PIL employees union on September 11, 2004, whereby NOCIL's PCD employees were given choice of accepting a Voluntary Retirement or join employment of RPCL on such terms and conditions as prescribed in the said MoU. Whereas 21 ex NOCIL employees belonging to Non SCC Non Technical category preferred to join employment with RPCL and were to undergo institutional residential training as per Clause No. 1 (d) and (f) of Part-II of the said MoU. (List attached as Annexure A). And that 19 ex NOCIL employees belonging to SSC Non Technical category preferred to join employment with RPCL and were to appear for a validation test to decide their further training as per Clause No 1(d) and (f) of Part-II of the said MoU to facilitate the said employees, a pre validation refresher course was organized. (List attached as Annexure B). Owing to variety of reasons, employees from both categories above, concertedly abstained from the institutional training and validation tests and the management was constrained to take disciplinary action against them and as such were dismissed from the employment after following due process of law. (List attached as Annexure B). Owing to variety of reasons, employees from both categories above, concertedly abstained from the institutional training and validation tests and the management was constrained to take disciplinary action against them and as such were dismissed from the employment after following due process of law. There were 34 ex NOCIL employees belonging to various categories who had desired to join employment of RPCL but were found medically unfit and as such were paid/offered VRS compensation by NOCIL as per Clause VIII of Annexure E of the said MoU. (List attached as Annexure C). The Union agitated over the above issues and several rounds of discussions have taken place between the management and the union from time to time. So also about several individual ULP complaints have been filed in the Hon. Industrial Court at Thane. Vide notice-dated January 5, 2005, Union had threatened to call a strike on the issues which were set out in its statement of reasons annexed to the strike notice (viz. Issues pertaining to dismissal and medical unfitness) which have been admitted in conciliation and the matter is before Shri RS Ghodeswar, Deputy Labour Commissioner, Thane who is the Conciliation Officer in the instant dispute. Management had contended that it will not be possible for them to consider re-employment of any of the dismissed employees or unfit cases. However, was willing to consider any other alternatives towards an amicable settlement/resolution of the issues. It also emphasized that all those who were medically unfit, are already paid compensation by NOCIL as per MoU. And that nothing more is required to be done for the said cases in view of the provisions in the MoU. The Union disagreed with the stand of the management and insisted upon its demand related to employment, which has been on the record of the conciliation proceedings. Hon. Guardian Minister Shri Ganesh Naik also advised the parties to amicable settle the issues through dialogue, facilitated and solemnized by the Conciliation Officer within the framework of law. And with a view to settle the disputes between RPCL, Unions and the above listed persons protracted discussions were carried out amongst the parties which resulted into an understanding, which is recorded below, in presence of the Hon. Deputy Labour Commissioner and the Conciliation Officer, Thane. And with a view to settle the disputes between RPCL, Unions and the above listed persons protracted discussions were carried out amongst the parties which resulted into an understanding, which is recorded below, in presence of the Hon. Deputy Labour Commissioner and the Conciliation Officer, Thane. Memorandum of Understanding (MoU): The following has been decided between the parties: 1) Amongst various proposals brought forth by the parties, one proposal from the employees, was to pay the cost of institutional training – which otherwise would have been incurred – to the dismissed employees. It was also requested by the Union/representatives that those declared medically unfit to join employment with RPCL be also offered some compensation. The management pointed out that those who are declared medically unfit have been already paid by NOCIL the Plan B VRS compensation and no further compensation is payable. Hence, purely on humanitarian grounds, without setting any precedent of whatsoever nature, the company has agreed for following compensation: 2) Compensation already paid: The 34 medically unfit ex NOCIL employees appearing in Annexure C are already paid the VRS Plan B compensation by NOCIL in terms of the MoU. Those who have participated in Early Separation plan of RPCL too have been paid the compensation as per the plan. Those who have been dismissed from the employment whose names appear in the Annexures A & B have yet not been paid any compensation. 3) Compensation payable under this settlement: Those who have been dismissed from the employment whose names appear in the Annexures A & B will be paid Rs. 7,91,000/-as one time compensation subject to tax. (Post tax this works out to Rs.6,00,000/-). The dismissed workmen whose names appear in Annexure D do not desire to accept the Onetime compensation offered by the company. Such workmen listed in Annexure D shall be at liberty to take recourse to law as may be desired by them. The 34 medically unfit ex NOCIL employees appearing in Annexure C and those who have participated in Early Separation plan of RPCL will be paid Compensation of Rs. 2, 34,000/-as additional compensation without setting any precedent of what so ever nature, subject to income tax. (Post tax this works out to Rs.2,11,200/-.). The workmen who are declared medically unfit and whose names appear in Annexure E, do not desire to participate in the early separation plan. 2, 34,000/-as additional compensation without setting any precedent of what so ever nature, subject to income tax. (Post tax this works out to Rs.2,11,200/-.). The workmen who are declared medically unfit and whose names appear in Annexure E, do not desire to participate in the early separation plan. Such workmen listed in Annexure E shall be at liberty to take recourse to law as may be desired by them. The tax on the above compensation will be borne by respective individuals as per the law. 4) General a. All the dismissed employees except those whose names are listed in annexure D and those declared medically unfit to join RPCL – except those listed in annexure E, will accept and will be bound by the above Memorandum of understanding between the parties. b. The litigations pending before Hon. Industrial Court between the company and the union and dismissed individual employees that are listed in the Annexure F to the MoU will be withdrawn, save and except in respect of those whose names appears in Annexure D and Annexure E. c. Any other proposals/ counter proposals made during the discussions prior to this settlement shall be considered as dropped/withdrawn. d. The Union, the dismissed employees and Unfit declared ex-NOCIL employees – except those whose names appear in Annexure D and Annexure E-agree that they will not raise any dispute of whatsoever nature before any authority in future with respect to the terms of the MoU and the issue will be deemed as settled once and for all. All these persons connected with the above will sign individual declarations to the above effect. e. The Union/ dismissed employees and Unfit declared ex-NOCIL employees – except those whose names appear in Annexure D and Annexure E – further agree that they will not raise any demand / dispute of whatsoever nature before any authority in future in respect of any other person connected or not connected with RPCL on the above issue and also forthwith draw any litigations pending before any judicial machinery.” [emphasis added] 20 The parties, by consent, led their restricted evidence in the following ways: Exh. CU-1 :The parties abovenamed states and submit that they desire to lead common evidence in the matters listed at Schedule T. The issues in these matters are more or less same. CU-1 :The parties abovenamed states and submit that they desire to lead common evidence in the matters listed at Schedule T. The issues in these matters are more or less same. Therefore, the parties submit that the matters listed in Schedule `I' may pleased be combined and the parties may be permitted to examine common witnesses. The parties further pray that all the said matter may be disposed off by a common order. Exh. CU-7:-M/s. Relene Petrochemicals Limited, now know as Reliance Corporate IT Park Limited (hereinafter referred to as the first party) states that the parties to the above matter have agreed to adopt the evidence recorded in Reference (IT) No. 20 of 2009; Reference (IT) No. 21 of 2009; Reference (IT) No. 22 of 2009; Reference (IT) No. 21 of 2009; Reference (IT) No.22 of 2009; Reference (IT) No.26 of 2009; Reference (IT) No. 59 of 2009; Reference (IT) No. 67 of 2009;Reference (IT) No. 70 of 2009. In view of the common evidence adopted in the above matter, the First Party closes its evidence. Therefore, bare reading of the above purshis the ground urged and the grievance aired leaves us in no doubt that there is common question of law and fact, therefore the present group of References are decided together.” 21 The Petitioners/employees accepted the settlement dated 18.6.2005 received the monetary consideration as per the settlement. They also signed the declaration that they would not raise any claim against the Respondent in respect of their severance. One of the specimen of such declaration as relevant, is as under: “AFFIDAVIT/IRREVOCABLE DECLARATION I, Mr. Gajanan Gangaram Patil, age 38 yrs, residing at H No.1732, Koliwada, At & Post Ghansoli, Thane Belapur Road, Navi Mumbai 400 701, hereby solemnly affirm as follows. have read and understood the settlement signed today i.e. June 18, 2005 by and between Relene Petrochemicals Private Limited, Thane-Belapur Road, Navi Mumbai and NOCIL employees Union and individual under Section 2(p) and Rule 18(3) of the Industrial Disputes Act 1947 and rules thereunder. The Scheme under the settlement has also been read and explained to me, and I have understood the contents of the same. The Scheme under the settlement has also been read and explained to me, and I have understood the contents of the same. I have submitted an application-dated 18, 2005 to the management communicating my acceptance of the terms of the said settlement and permanently and irrevocably relinquish my claim on employment with Relene Petrochemicals Private Limited by accepting the settlement/tendering my resignation in terms of the settlement and to pay the compensation as per the settlement. I further declare that the settlement shall be binding on me entirely and my above application dated June 18, 2005 is irrevocable and shall not be revoked or terminated by me or any other person, nor shall it be amended or altered by me or any other person. I also undertake to withdraw all litigation pending at any judicial forum against the company as also not to raise any dispute in respect of my separation, amount of compensation or of any other nature in this transaction between me and Relene Petrochemicals Private Limited at any forum and/or before any authority at any time in future. Yours faithfully, Signature : Sd/- Name : Gajanan Gangaram Patil Date : 18th June 2005. Witness 1 : Date : 18/06/2005 Witness 2: Date : 18/06/2005.” Signature : Sd/- Signature : Sd/- Name: Parte V. R. Name : R. K. JADHAV The non-execution of this affidavit/declaration before the magistrate or the authority, is not so important, the moment, the respective employees unable to deny their signature and the benefits, arising out of the same. 22 The Respondents as provided and proved it in tabulated form in evidence and averred in a common affidavit reply also. I am not inclined to accept the additional submissions of the Petitioners; now raised in rejoinder. The Petitioners cannot change stand or bring out new case in Writ Petition in such fashion. All these afterthought and inconsistent statements and averments itself shows their unclean, vague and inconsistent pleas/assertions which are not reliable and or sufficient to grant the reliefs so prayed. 23 There are 4 batches/groups of employees/references/claims:- The employees/Petitioners declared medically unfit for employment (Award No.1.) b) The Petitioners dismissed after domestic enquiry but not challenged (Award No.2) c) The Petitioners dismissed after domestic enquiry and dismissal challenged (Award No.3). d) Such others. We are concerned basically with these three awards. 23 There are 4 batches/groups of employees/references/claims:- The employees/Petitioners declared medically unfit for employment (Award No.1.) b) The Petitioners dismissed after domestic enquiry but not challenged (Award No.2) c) The Petitioners dismissed after domestic enquiry and dismissal challenged (Award No.3). d) Such others. We are concerned basically with these three awards. 24 Writ Petition No. 4810 (Gajanan G. Patil) – He was declared medically unfit but who got the benefits of Rs.2.34 lacs (net Rs.2,11,200/-) as per settlement dated 18 June 2005 in addition to the VRS plan A and B. All the other Petitioners-employees in this group of matters are similarly placed, except their names and reference numbers. The learned Judge has given common findings accordingly and the same has been treated as Award No.1 to avoid repetition, there for the common order. 25 In Writ Petition No. 4814 of 2012, (Ramesh Krishna Patil), the Petitioners received Rs. 7.91 lacs (net Rs. 6 lacs) as per the settlement dated 18 June 2005. This Petition is dismissed after domestic enquiry but not challenged the award. The award is treated as Award No.2. The Petitioner in Writ Petition No. 6142 of 2012 settled and the ULP was dismissed by the Labour Court Thane. The Writ Petition No. 4806 of 2012 (Nivrutti Pandharinath Mhatre) who was dismissed after domestic enquiry therefore challenged the dismissal order. The Petitioner received Rs.7.91 lacs (net Rs.6 lacs) as per the settlement dated 18 June 2005. There respective ULP/cases settled and dismissed by the Labour Court, Thane. 26 The Petitioner in Writ Petition No. 7663 of 2012 (Gorakhnath Hiraji Mhatre) resigned but no specific operative order was passed in his reference. The Petitioner in Writ Petition No. 7687 of 2012 resigned but not joined. In Writ Petition No. 7686/2012, the Petitioner resigned but not joined. His case, as per the Respondent was falls under the medically unfit matters. 27 In Writ Petition No. 4810 of 2012, medically unfit matters, the main prayers of settlement of claim filed before the Industrial Tribunal, Thane were as under:- “a) This Hon'ble Court be please held that the action of the first party company of not paying difference amount of Rs.16 Lakhs to the second party workman is illegal. 27 In Writ Petition No. 4810 of 2012, medically unfit matters, the main prayers of settlement of claim filed before the Industrial Tribunal, Thane were as under:- “a) This Hon'ble Court be please held that the action of the first party company of not paying difference amount of Rs.16 Lakhs to the second party workman is illegal. b) The Hon'ble Court be please held at the first party company failed to implement notice/agreement dated 14.1.2005 and illegally refused to pay difference of Rs.16 Lakhs between the two plan i.e. the Early Separation Plan 2005 and Early Separation Plan 2006. c) This Hon'ble Court be pleased direct the first party company to pay Rs.16 Lakhs to the second party workman towards difference between two plan i.e. Early Separation Plan 2005 and Early Separation Plan 2006 as per notice dated 14.1.2005. d) Any other relief as deem feet by this Hon'ble Court. e) Cost of the reference.” 28 The similar prayers have been made in Writ Petition No.4814 of 2012 (Award No.2) and all the connected matters. So also in other groups of Writ Petition No. 4806 of 2012 (Award No.3) and connected matters. 29 The notices were issued for the final disposal at the admission stage. The Respondents have filed their respective affidavits. The rejoinder and additional compilation in each matters have been filed. All the matters and points are quite interconnected and interlinked. Therefore, heard together by consent finally at the admission stage. 30 The Petitioners in all these matters have challenged the impugned award by these Writ Petitions referring to Article 226 and 227 of the Constitution of India. Interim prayers were also made against the Respondent company to deposit a sum of Rs.16 lacs difference between the two plans 2005 and 2006. 31 The learned Industrial Court, after considering the evidence and the material documents placed on record, recorded as under (In Writ Petition No. 4810 of 2012):- “Shri. Tokekar, management's witness who has signed the alleged notice dt. 14.01.2005 is examined in Court and he has denied the suggestion that the settlement dt. 18.06.2005 was not accepted by workers, as the question of claim arising out of letter dt. 14.01.2005 was fully and finally settled by company vide settlement dt. 14.01.2005 is examined in Court and he has denied the suggestion that the settlement dt. 18.06.2005 was not accepted by workers, as the question of claim arising out of letter dt. 14.01.2005 was fully and finally settled by company vide settlement dt. 18.06.2005, and Shri. Tokekar, Management witness was put a specific question in cross as under and he replied as under:- Que.: It is true that the management has not withdrawn the letter dt. 14.01.2005? Ans.:-The settlement dt. 18th June, 2005 overrides the above letter. Therefore, the second party has failed to discharge its burden by proving that letter dt. 14.01.2005 is an agreement. It also needs to be mentioned that Section 2(p) of I.D. Act, 1947 postulates two methods of arriving at a settlement. (1) Settlement in the course of conciliation proceedings. (2) settlement otherwise than in the course of conciliation proceedings, and it must be signed by the parties in a prescribed manner. In this case, the letter dt. 14.01.2005 cannot be termed as an agreement because it is not signed by both sides i.e. union and company or workers and company. Whereas, the Settlement dt. 18.06.2005 signed later on is under Section 2(p) read with Section 18(3) of I.D. Act, 1947 by two parties. Therefore, Section 19(2) of I.D. Act states that every settlement reached between the parties shall continue to be binding upon the parties and it continues to bind till terminated by a notice in writing to the other party. In this case the second party workers are stating that the notice dt. 14.01.2005 is signed by authorized signatory of the company Shri. Tokekar, hence the assurance is given modifying the earlier settlements. In this case Shri. Tokekar the signatory to the notice dt. 14.01.2005 is examined and he has explained the reasons for putting up the notice and the management did not agree to pay additional money. Therefore, the second party are trying to enforce something, which is in derogation to the Settlement and contrary to terms of settlement, and which is not mentioned in the letter dt. 14.01.2005 and they are misinterpreting the said letter although they have received the amounts as agreed. 20. Therefore, the question which needs to be considered is whether authorized signatory of the company on his own without following the procedure of law can modify the contents of a settlement dt. 14.01.2005 and they are misinterpreting the said letter although they have received the amounts as agreed. 20. Therefore, the question which needs to be considered is whether authorized signatory of the company on his own without following the procedure of law can modify the contents of a settlement dt. 18.06.2005 arrived at in the course of conciliation proceedings, the answer is No. Therefore, what is spoken by Shri. Tokekar in the notice must have connection to the transaction and agreement of the company to pay more, and first party company has examined Tokekar to rebut the contention of the Second Party with regard to the notice dt. 14.01.2005. In the above references the persons are declared medically unfit and they are ex-NOCIL employees and as per settled law the settlement dt. 18.06.2005 can be superseded only by other settlement and not by letter dt. 14.01.2005.” The Tribunal has thereby concluded the issue No.3 and 4 also. 32 The learned Industrial Tribunal after taking note of evidence read with the material documents placed on record, in this matter also after dealing with letter dated 14 January 2005 by giving similar findings by taking note of Section 2(p) with Section 18(3) and 19(2) of the ID Act held that every settlement between the parties shall continue to be binding. 33 It is relevant to note that the Additional Commissioner of Labour, Mumbai, in view of the workman's individual but identical letter dated 19.01.2008, vide its letter dated 16.07.2009, 26.02.2009 and 21.12.2009 and in view of Section 12(4) of ID Act referred the matter for deciding the dispute between the parties as per the schedule which is already reproduced above. It is relevant to note the basic demand as per letter dated 19.01.2008, which reads as under: “Demand In the month of December 2006 I along with my colleagues had continuously tried to communicate with Mr. Tokekar for the difference of compensation amount offered to us i.e. Rs. 22 lakh as we had received only Rs. 06 lakh as compensation against the same. Therefore, the difference of Rs. 16 lacs remains with Relene Petrochemicals Ltd and obviously I am bonafidely entitled for the same. Every time Mr. Tokekar told us that the difference between the compensation that is Rs. 16 lakhs will be definitely forwarded to all the consent employees at the earliest. 06 lakh as compensation against the same. Therefore, the difference of Rs. 16 lacs remains with Relene Petrochemicals Ltd and obviously I am bonafidely entitled for the same. Every time Mr. Tokekar told us that the difference between the compensation that is Rs. 16 lakhs will be definitely forwarded to all the consent employees at the earliest. Hence through this demand notice I being employee of Relene Petrochemicals Ltd appeal company management. Kindly disburse the above mentioned difference between two VRS plan (Rs. 16 lakh) at the earliest. As assured by Mr. Tokekar I am generously waiting for the payment for which I am bonafide entitled. I hope you will arrange to send the said payment at the earliest at my above mentioned address.” 34 The learned Judge, Industrial Court, referring to the individual case/reference number and similar facts and circumstances and as the identical points of reference were involved and, therefore, based upon the pleadings and the statement of the respective claims, has passed the common order, but in three groups. The Respondent gave three lists of the employees referring to their grievances and respective claims. Therefore, for convenient and disposal and to avoid repetition, I am taking first Petition in each of the lists as lead Petition for the common order. The learned Judge, pursuance to the consent as well as the purshis so filed by the parties referring to the particular group of employees and as the common facts and questions are involved, therefore, passed the common order. Therefore also this common judgment. 35 The learned Judge has crystalised the facts in the following words: “The 22 persons employed by the management of NOCIL mentioned in the tabulated form. It is further submitted that thereafter the NOCIL company was taken over by the management of M/s. Relene Petrochemicals Ltd. As per MOU DATED 11.09.2004 SIGNED BETWEEN m/S. Relene Petrochemicals Pvt. Ltd., National Organic Chemicals Industry Ltd., NOCIL Employees union, and PIL Employees Union and that from October-2004 onward the second party workmen was employed by M/s. Relene Petrochemicals Ltd. It is further stated that all of a sudden the management of M/s. Relene Petrochemicals Ltd has started tremendous physical, mental as well as social harassment of all the employees in every respect with intention that the employees should submit their resignation and leave the employment. It is also submitted that the NOCIL Employees Union and M/s. Relene Petrochemicals Ltd were very much hand in gloves with each other because of this the so called union leaders had motivated the Relene Management's malafide interest for the terms and conditions of Early Separation Plan, and accordingly the union signed MOU dated 11.09.2004 before the Deputy Commissioner of Labour, Thane. It is further submitted that the First Party Management succeeded to compel 50% employees to accept Early Separation Plan and the remaining employees were dragged into the domestic enquiry held at various hotels and restaurants located in the nearby area without giving any fair opportunity to defend their case, some of the employees were shown medically unfit to work without showing appropriate medical reports given by the concerned hospitals and some of the employees were compelled to undergo for written examination conducted by M/s. Relene Petrochemicals Ltd and some of the employees were sent for alleged training, and some employees were compulsorily sent for training at Village Chinchani, Dist. Thane, and this harassment was started only for the reason that the employees should submit their resignation of service, and as a part of harassment the management of M/s. Relene Petrochemicals Ltd decided o complete the formality of the enquiry and terminate the services of the workmen and accordingly issued the charge-sheet to Mr. Madhukar Dhanawade, Mr. Suresh Dhanawade, Mr. Narayan Shigwan, Mr. Ghanshyam Rane and Mr. Nandu Panchal and other employees, and by completing the empty formality of the enquiry their services are terminated illegally. It is further contended that the first party management were insisting to the second party workmen to accept VRS and leave the employment but second party workman refused to accept VRS, and therefore he was illegally declared medical unfit for employment and his services were illegally terminated and before declaring medically unfit for employment the first party management has not given any opportunity to the second party workman to defend his case and illegally and arbitrarily he was declared medically unfit for employment. It is also submitted that at the time of termination of his services the first party management taken the shelter of MOU dated 11.09.2004 and illegally terminated the services without following due process of law. It is also submitted that at the time of termination of his services the first party management taken the shelter of MOU dated 11.09.2004 and illegally terminated the services without following due process of law. It is next submitted that the management and the union has no right to sign settlement in respect of termination of services of any of the employees and as per ratio laid down by Hon'ble Bombay High Court employer the recognized union by settlement cannot decide the fate of workmen by agreeing to terminate their services in violation of provisions of law, and that at the time of termination of his services the first party company failed to comply the provisions laid down under Section 25-F, 25-G, 25-O of the I.D.Act, and that his services are terminated illegally without following due process of law and therefore, the action of the first party company is illegal and unjustified. The second party workmen submit that the second party workman challenged the said illegal termination order before the Conciliation Officer, and during the pendency of the conciliation proceeding the management issued one notice dated 14.01.2005 and informed the employees that as per the suggestion of the Deputy Labour Commissioner and Conciliation Officer, Thane the management has decided to extend the last date for the early separation plan to the closing hours of 20.01.2005. It is further submitted that in the said notice dated 14.01.2005 the first party management clarified that the management hereby assures that in case any additional financial compensation is offered to any other employee, who have been dismissed or those who opt for separation later, the same will be offered to those who take benefit of the instant Early Separation Plan, as well as those who have separated earlier under NOCIL V.R.R. Plan-B, and therefore, he is entitled to be paid the difference of Rs. 16 lacs as he is paid only 6 lacs. The Second Party workmen further submit that during the month of December-2006, the second party workman along with his 21 colleagues had continuously tried to communicate Mr. Tokekar, Manager of the first party company for making payment of the difference of compensation amount offered to them as per the management letter dated 14.01.2005, and that every time Mr. Tokekar, the Manager of the First Party company told them that difference of the compensation amount i.e. Rs. Tokekar, Manager of the first party company for making payment of the difference of compensation amount offered to them as per the management letter dated 14.01.2005, and that every time Mr. Tokekar, the Manager of the First Party company told them that difference of the compensation amount i.e. Rs. 16 lacs will be definitely forwarded to all the concerned workers at the earliest, and as assured by Mr. Tokekar, the Manager of the First Party company the second party workman and other colleagues waited for long time but since there was no response and therefore, they decided to raise dispute before the Conciliation Officer. The Second Party workman further submitted that his services were terminated illegally without following due process of law, and the first party management illegally and arbitrarily he was declared medically unfit for employment, and the said action challenged by second party workmen before the Conciliation Officer, Thane, and during the pendency of the conciliation proceeding the first party management agreed to pay legal dues as per notice dated 14.01.2005 and as per the assurance given in the notice dated 14.01.2005, the second party workman accepted the legal dues and therefore this is not a case of V.R.S. But it is a case of termination of service, and his services illegally terminated and therefore the second party workman is covered under the definition of Section 2(s) of the Industrial Dispute Act, 1947. It is further submitted that the assurance given by the first party company in the notice dated 14.01.2005 is an agreement and therefore the first party management is bound to pay difference amount of Rs. 10 lacs between the Early Separation Plan 2005 and Early Separation Plan, 2006. Therefore, the second party has prayed that the action of first party company of not paying difference amount of Rs. 16 lacs to second party is illegal, and first party company should pay the same.” 36 The Respondents/workmen resisted the same by its reply and written submissions. Those submission as crystalised are as follows: “Therefore in the written arguments of the company, it is argued in short at pages 19 to 20 that:- a) The Medically unfit ex-NOCIL employees are not `workmen' as defined under the Industrial Disputes Act because they were never employed by the Company and have also declared that they have resigned from the services of the company pursuant to Settlement dated 18.06.2005. b) The dismissed employees are not `workmen' under the Industrial Disputes Act because they have declared that they resigned from the company pursuant to the Settlement dt. 18.06.2005. c) The 2 employees who have opted for EPS dated 04.01.2005 are not `workmen' under the Industrial Disputes Act because they have voluntarily resigned from the services of the Company and 1 employees not a `workmen' under the Industrial Disputes Act because he never joined the employment of the company and all these three employees have declared that they have resigned from the services of the company pursuant to Settlement dated 18.06.2005. d) The persons/employees concerned in the References have settled their disputes and demands vide Settlement dated 18.06.2005. Therefore, no industrial dispute exists or survives. e) No master and servant relationship existed between the company and persons who were declared medically unfit. Hence, the concerned persons/employees are not `workmen' as defined under the Industrial Disputes Act, 1947. f) No industrial dispute exists or survives as the alleged dispute is settled as per Settlement dated 18.06.2005. g) The letter dated 14.01.2005 does not create any right in favour of the persons/concerned in the Reference. h) The persons who were dismissed from services were dismissed in the year 2004 i.e. prior to the Early Separation Plan dated 04.01.2005. Therefor, they have no right whatsoever to claim any compensation based on Voluntary Retirement Plan, ESP prior. I) The persons who have opted for Early Separation Plan dated 04.01.2005 ceased to be servants of the Company on accepting voluntary Retirement. Hence, they are not `workmen' under the Industrial Disputes Act. j) The alleged dispute claiming difference in compensation under the Voluntary Separation Plan is not a matter within the jurisdiction of the Industrial Tribunal as the same is not included in the Third Schedule of the Industrial Disputes Act.” 37 The parties themselves have restricted their respective evidence by filing separate purshis as referred in paragraph 4. The learned Judge, based upon the draft issues so submitted by the parties, framed the issues in the matter. 38 First of all, considering the averments as well as the prayer so made by the complainants in their complaint, in the background of Demand letter dated 19.01.2008, though reference was made to the earlier letter/notice dated 14.01.2005, there was no specific reference made to Settlement dated 18.06.2005. 38 First of all, considering the averments as well as the prayer so made by the complainants in their complaint, in the background of Demand letter dated 19.01.2008, though reference was made to the earlier letter/notice dated 14.01.2005, there was no specific reference made to Settlement dated 18.06.2005. The Respondent, while resisting the claim in the background referred, mentioned and placed on record the settlement. The Petitioners, though led evidence in support of their case, nowhere denied and/or resisted in any way Settlement dated 18.06.2005. The objection and/or resistance of the Settlement on various other grounds as averred in their original complaint and/or in the letter in no way sufficient to accept their submissions to overlook the Settlement. If there is no denial to the Settlement, neither there is denial to the contents of the said settlement. The individual objection, even if any, so raised, in no way, take away the impact and the binding effect of the said Settlement. 39 The Settlement as reproduced above was admittedly under Section 2(p) read with Section 18(3) of the ID Act 1947 and also read with sub-rule (4) of Rule 62 of the Industrial Disputes (Bombay) Rules, 1957 (the Rules). The recital of the said Settlement covers and deals with all the factual background, including Tripartite Memorandum of Understanding (MoU) dated 11 September 2004, threatened strike to call a strike vide notice dated 5 January 2005, the aspect of compensation already paid, referring to the medically unfit ex-NOCIL employees in Annexure “C” and the respective payment made, based upon the VRS Plan “B” in terms of the MoU. It is specifically mentioned that those who have participated in Early Separation Plan of RPCL, have also been paid the compensation as per the Plan. 40 The employees, who were dismissed from the employment, their names appear in Annexure A and B, as recorded not paid any compensation. It is specifically mentioned about the compensation payable under this Agreement. This covers every sort of employee of respective groups as mentioned in clause 3 of the Settlement and as underlined above. 41 All the concerned employees, based upon this Settlement, at the relevant time, based upon then existing position accepted the respective compensation as per their class. The Settlement, as recorded above, has taken care of all the earlier disputes, conflicts between the parties in most of the issues. 41 All the concerned employees, based upon this Settlement, at the relevant time, based upon then existing position accepted the respective compensation as per their class. The Settlement, as recorded above, has taken care of all the earlier disputes, conflicts between the parties in most of the issues. Those are specifically marked and mentioned above. Undisputedly, the respective employees/workmen have accepted the settlement amount and issued the necessary receipts also. They gave respective declaration/affidavit. The contents of the said affidavit/declaration are not specifically denied nor their respective signatures. The Settlement and its contents, therefore, acted upon by all the parties throughout and got the benefits accordingly. The affidavit/declaration so reproduced and as given and its contents in no way can be overlooked by the Court for the reasons so averred in the complaint as well as merely because the ignorance is shown by the concerned employees, who led evidence on behalf of the other provisions in the respective matter. The submission that the declaration and/or the affidavit so prepared and/or filed in no way is reliable and/or acceptable for want of legal sanction as contemplated referring to the law of affidavit if any. This technical objection looses its importance the moment there is undisputed fact on record that the Petitioners/employees have actually acted upon and made the declaration/affidavit accordingly. There is no denial to the signatures and also the fact that those declaration/affidavit witnessed by some other employees. The learned Judge, in view of the evidence placed on record by the parties, oral as well as documentary, gave clear finding with regard to the same and thereby refused to entertain the complaints, as well as, the prayers so made. 42 At this juncture, it is necessary to take note of the cases of the complainants and their individual prayers, based upon the demand so raised and the point of reference so reproduced above. The party one, who makes positive averment, needs to prove the same. In the present case, nothing was mentioned and/or discussed while making so prayers about the Settlement. It is the Respondent, who in their submission/defence, referred and pointed out about the Settlement. The case of the complainant/Petitioner to claim Rs. 16 lacs as consequential difference between two schemes i.e. between 2005 and 2006, was based upon the so-called notice dated 14.01.2005. In the present case, nothing was mentioned and/or discussed while making so prayers about the Settlement. It is the Respondent, who in their submission/defence, referred and pointed out about the Settlement. The case of the complainant/Petitioner to claim Rs. 16 lacs as consequential difference between two schemes i.e. between 2005 and 2006, was based upon the so-called notice dated 14.01.2005. Merely because some other employee got the additional benefit subsequently, cannot be the reason to overlook the settlement in question, basically when there is no prayer whatsoever raised and/or made by them to challenge the settlement dated 18.06.2005. They knew, when they filed the complaint itself and/or raised the demand that the concerned employees themselves have enjoyed the benefit of the settlement. They knew that they have already given affidavit/declaration to say that they would not claim and/or litigate further in the matter. The matter should have ended then and there only on the date of acceptance of such benefits, based upon the settlement. It is difficult to accept the case and the submission that they were still employees and/or workmen as contemplated under the ID Act. Even if, in a given case, the parties aggrieved by the settlement, they may raised objection, the Court, based upon the facts and circumstances, may take note of their grievances and pass appropriate order. In the present facts and circumstances, though settlements took place in the year 2005/2006, they raised demand in 2008 in view of the more amount paid to other person subsequently, based upon their separate agreement and settlement. It is necessary to note here again that when a party arrives at settlement on a particular date and/or time and having once accepted the same, proceeded accordingly by getting the benefits arising out of the same, they are bound by it. The Settlement take care of all the employees, though referring to individual/separate groups as referred above. Therefore, the class so created, based upon the settlement are under obligation to accept the same. We are not concerned with under what circumstances, some of the employees, in view of the subsequent development which were definitely not part and parcel of the class who got the benefits of this settlement, got the more amount. That is different class altogether. The facts and circumstances of last settlement, even if any, in my view, just cannot be compared with the settlement already arrived at. That is different class altogether. The facts and circumstances of last settlement, even if any, in my view, just cannot be compared with the settlement already arrived at. This is also for the reason that it is difficult now to accept the case of the Petitioner to accept and/or permit them to revoke their own binding agreement/settlement when they themselves proceeded and acted upon and gave the respective binding declaration. This goes to the root of the matter. 43 The averments so made in the complaint as well as evidence so led, including the demand so initiated and the prayers made, no way sufficient to destroy and/or disturb the settlement itself as well as the contents thereof. It binds all the parties. The demand so raised and the actual references admittedly revolve around the alleged claim of the complainants/petitioners referring to one sided notice dated 14.01.2005. There is no case made out by the complainants/petitioners of any undue influence, fraud and/or coercion. No pleading to that effect in fact made. The evidence led, in no way, sufficient to accept the case to overlook the settlement and pass the order and/or award the amount so demanded by notice dated 14.01.2005, which admittedly, was considered and specifically dealt with and agreed by the parties in the settlement dated 18.06.2005. The Petitioners/employees and the parties having once acted upon, just cannot be permitted and in fact estopped from going back from their own settlement. The conduct of the Petitioners/employees itself demonstrate that they admittedly got the benefit and enjoyed the same for long and, therefore, unable and/or even otherwise could not be in a position to challenge their own conduct and the binding settlement in question. Therefore, once it is found and as recorded above that the subsequent settlement binds all the parties, by overlooking the same, no relief as demanded and/or prayed in the complaint, based upon the notice/alleged agreement dated 14.01.2005 can be granted. 44 The concept of “settlement” is defined in ID Act in Section 2(p), “workman” in Section 2(s) and “industrial dispute” in Section 2(k). Section 18 deals with the provisions relating to “Persons on whom settlements and awards are binding”. Section 19 covers the aspect of “Period of operation of settlements and awards”. 44 The concept of “settlement” is defined in ID Act in Section 2(p), “workman” in Section 2(s) and “industrial dispute” in Section 2(k). Section 18 deals with the provisions relating to “Persons on whom settlements and awards are binding”. Section 19 covers the aspect of “Period of operation of settlements and awards”. 45 Admittedly, Settlement dated 18.06.2005 falls under the ambit of Section 2(p) read with Section 18(3) of ID Act and the relevant rule 62(4), which reads thus: “62 Memorandum of settlement. (1) (2)... (3) ….. (4) Where a settlement is arrived at between an employer and his workmen otherwise than in the course of conciliation proceedings before a Board or a Conciliation Officer, the parties to the settlement shall jointly send a copy thereof to the Secretary to the Government of Maharashtra, Industries and Labour Department, Bombay, the Commissioner of Labour Bombay, the Deputy Commissioner of Labour (Administration), Bombay, the Deputy Commissioner of Labour, Poona, the Deputy Commissioner of Labour, Nagpur and the Conciliation Officer concerned.” 46 Mr. Kango and Mr. Sabrad, the learned counsel appearing for the Petitioners relied on the following judgments: (I) Nar Singh Pal v. Union of India and others – (2000) 3 SCC 588 – The case was under Section 25-F of ID Act. It is held that the acceptance of retrenchment compensation cannot validate and invalid the order of termination. It is also observed that fundamental rights cannot be waived nor there can be estoppel against exercise of fundamental rights. (II) J. H. Jadhav v. Forbes Gokak Ltd. (2005) 3 SCC 202 – The definition of Industrial Dispute, Section 2(k) has been elaborated. (III) Tulip Star Hotels and others vs. Union of Centaur-Tulip Employees and others – 2007 III LLJ page 9 – The Apex Court has dealt with Section 28 of MRTU & PULP Act, 1971 and its relevant aspect, referring to the enforcement of the VRS. The aspect of relationship of employer/employee has also been discussed. This matter was remanded by the higher court. (IV) Petroleum Employees Union vs. Industrial Court, Maharashtra 1980 (40) F. L. R. page 279 – Item 9 of MRTU & PULP Act, 1971, referring to agreement between the parties have been discussed. The issue of ex-gratia payment in lieu of bonus and taxation aspect was considered. (V) Ibrahim Hanif Mulani v. General Manager, Walchandnagar Industries Ltd. Satara and anr. (IV) Petroleum Employees Union vs. Industrial Court, Maharashtra 1980 (40) F. L. R. page 279 – Item 9 of MRTU & PULP Act, 1971, referring to agreement between the parties have been discussed. The issue of ex-gratia payment in lieu of bonus and taxation aspect was considered. (V) Ibrahim Hanif Mulani v. General Manager, Walchandnagar Industries Ltd. Satara and anr. – 2002 II CLR 395 – The case was under Section 25-F, 25-G and 25-N of ID Act. It is held that a settlement cannot decide fate of workmen by agreeing to terminate their services in violation of provisions of law. This judgment has been overruled by a Division Bench reported in 2006 I CLR 810Walchandnagar Industries Limited v. Dattusingh Lalsing Pardeshi. (VI) Ceat Ltd. (Electronics Division), Mumbai v. Anand Aba Saheb Hawaldar & ors. 2003 II CLR 741 – Items 5 & 9 of Schedule IV of MRTU & PULP Act were in issue. This matter has also been overruled. [2006 I CLR 804] 47 Mr. C. U. Singh, the learned senior counsel appearing for the Respondents has relied on the following judgments: (I) National Engineering Industries Ltd. vs. State of Rajasthan and others – (2000) 1 SCC 371 . In this matter, the Supreme Court has dealt with Sections 10, 12, 18(1), 18(3), 19 and 2(p) of ID Act. It is observed in para 4 as under: “4 On the charter of demands raised by the Workers' Union and on which the Conciliation Officer had submitted a failure report, the State Government did not make any order for reference of the disputes nor did it refuse to make reference. The Workers' Union then filed a writ petition in the High Court requiring the State Government to make reference of their disputes to the Industrial Tribunal under the provisions of the Act. This writ petition was decided by a Division Bench of the High Court on 23-3-1989 whereby it was directed to the State Government to the Statement to decide the question on the failure report of the Conciliation Officer whether to make or not to make the reference. “The High Court did not agree with the contention raised by the appellant and dismissed the writ petition. Aggrieved, the appellant came to this Court. “The High Court did not agree with the contention raised by the appellant and dismissed the writ petition. Aggrieved, the appellant came to this Court. This Court held that the terms of the settlement could not be considered to be in any way ex facie, unjust or unfair and the settlement consequently must be held to be binding on the workmen who did not accept the settlement. This Court referred in great detail to the provisions of Sections 2(k), 2(p) and 18(1) of the Act and noticed the decision of this Court in Herbertsons 47 Ltd. v. Workmen, (1976) 4 SCC 736 , where this Court had said that when a recognised union negotiates with an employer the workers as individuals do not come into the picture. It is not necessary that each individual worker should know the implications of the settlement since a recognised union, which is expected to protect the legitimate interests of the labour enters into a settlement in the best interests of the labour. This would be the normal rule. …... Settlement of labour disputes by direct negotiation and collective bargaining is always to be preferred for it is the best guarantee of industrial peace which is the aim of all legislations for settlement of labour disputes. ….......... The recognised union having the majority of members is expected to protect the legitimate interest of the labour and enter into a settlement in the best interest of the labour. This is with the object to uphold the sanctity of settlement reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. When a settlement is arrived at during the conciliation proceedings it is binding on the members of the Workers' Union as laid down by Section 18(3)(d) of the Act. It would ipso facto bind all the existing workmen who are all parties to the industrial dispute and who may not be members of unions that are signatories to such settlement under Section 12(3) of the Act. 29 ….......This is part from the fact that in our view reference in itself was bad as the tripartite settlement did bind the members of the Workers' Union as well. (II) CEAT Limited v. Anand Abasaheb Hawaldar and ors. 29 ….......This is part from the fact that in our view reference in itself was bad as the tripartite settlement did bind the members of the Workers' Union as well. (II) CEAT Limited v. Anand Abasaheb Hawaldar and ors. – 2006 I CLR 804 – In para 16 it is observed as under: “16 The factual scenario does not establish any favouritism or partiality. When VRS I scheme was introduced same was offered to every employee. It is nobody's case that there was any hidden intent and/or that the employer had any previous knowledge at the time of introducing the scheme that some of the employees would not accept it. It is not the case of the complainants that the employer had at that point of time intended to pay something more to those who did not accept VRS 1. The memorandum of understanding which was the foundation for the VRS II, of course gives a different package, but on the clear understanding that litigations of all types were to be withdrawn.” (III) Walchandnagar Industries Limited, Satara vs. Dattusingh Lalsing Pardeshi and ors. 2006 I CLR 810, wherein it is observed as under: “67 …................... The definition of the settlement does not contemplate that the settlement can take place only after the industrial dispute has arisen. It can take place while the industrial dispute is in conciliation proceedings, the settlement is equally possible and even after the failure of the conciliation proceeding. We find that where the employer and employee relationships are good and sound it is equally possible before initiation of the industrial dispute as desired under the Rule. Such a settlement, on the contrary we will have to welcome for the industrial peace and good relations and development of the industry. 70 In the Result, both the Letters Patent Appeals are allowed. The judgment and order dated 19th April 2002 passed by the learned Single Judge of this Court in Writ Petition Nos. 4730 of 1994 and 4734 of 1994 are hereby set aside. The original complaints filed by the respondents are also hereby dismissed. (IV) WMI Cranes Limited and anr. v. Kush Sitaram Chavan & 41 ors. – 2007 I CLR 1020 -In para 68 it is observed as under: “68 I am of the view that there is a cessation of relationship between the employer and the employee. The original complaints filed by the respondents are also hereby dismissed. (IV) WMI Cranes Limited and anr. v. Kush Sitaram Chavan & 41 ors. – 2007 I CLR 1020 -In para 68 it is observed as under: “68 I am of the view that there is a cessation of relationship between the employer and the employee. It is doubtful as to whether the complaint of the nature presented could have been maintained at all. However, I have proceeded on the basis that assuming such a complaint could have been maintained, in the present facts and circumstances, I am of the view that the allegations of unfair labour practices alleged therein have not been proved at all. The petitioners cannot be said to be guilty of commission of unfair labour practices much less those alleged against them in the complaint.” (V) Burroughs Wellcom (I) Ltd. v. Jagannath Namdeo Patel and ors – 2006 (1) Bom. C.R. 812 – In paras 10, 11 and 12 it is observed as under: “10 The Apex Court in the case of Vice Chairman & Managing Director, A.P.S.I.D.C. Ltd & Anr (supra) held (at para 12 as follows:- “...... When the employees have opted for VRS on their own without any compulsion knowing fully well about the Scheme, guidelines and circulars governing the same, it is not open to them to make any claim contrary to the terms accepted. It is matter of contract between the Corporation and the employees. It is not for the courts to rewrite the terms of the contract, which were clear to the contracting parties, as indicated in the guidelines and circular governing them under which Voluntary Retirement Schemes floated. 11 …..................... In view of the fact that nearly ninety nine per cent of employees have availed of the VRS Scheme and have left the companies (FCI & HFC), the writ petition no longer survives and has become in fructuous. 48 This type of settlement and its binding effect has been settled even by the Apex Court in the paragraphs which are already quoted above in National Engineering Industries Ltd. (supra). The binding effect of settlement under ID Act has been reiterated. Once the settlement takes effect, all are governed by the settlement for all the time to come. 48 This type of settlement and its binding effect has been settled even by the Apex Court in the paragraphs which are already quoted above in National Engineering Industries Ltd. (supra). The binding effect of settlement under ID Act has been reiterated. Once the settlement takes effect, all are governed by the settlement for all the time to come. [AIR INDIA Cabin Crew Association and others vs. Union of India and others, (2012) 1 SCC 619 ] 49 The observation made in Walchadnagar Industries Limited (supra) in paragraphs 67 and 70 is also relevant and so also paragraphs 10, 12 of Burroughs Well com (I) Ltd. (supra). 50 A learned Single Judge of this Court has also recorded in such situation, the position with regard the relationship between the employer and employees once the settlement is agreed, signed and acted upon by the parties in WMI Cranes Limited (supra) in paragraph 68. 51 The submission of the learned counsel appearing for the Petitioners-employees, based upon Nar Singh Pal (supra), in the present facts and circumstances is of no assistance as in that case, the issue was acceptance of retrenchment compensation which was stated to be illegal and invalidate the order of termination. It is observed and it is settled also that fundamental rights cannot be waived nor there can be estoppel against exercise of fundamental rights. In the present case, it is not the question of waiving of fundamental rights and/or estoppel against the exercise of fundamental rights, specifically when the Petitioners-employees admittedly knowing their rights at the relevant time, signed and accepted the said settlement and enjoyed the benefit arising out of the same. The fundamental rights issue, even if any, ought to have been considered by themselves at the relevant time when they arrived at the settlement. As recorded, there is no specific challenge raised to the settlement, but their demand was based upon the alleged payment of more money to some other employees. The aspect of fundamental rights are applicable to all the parties. The parties knowing their legal and fundamental rights if themselves, in normal circumstances, proceeded and acted upon, they are definitely estopped from raising the same now by such Petition by overlooking their own conduct. The aspect of fundamental rights are applicable to all the parties. The parties knowing their legal and fundamental rights if themselves, in normal circumstances, proceeded and acted upon, they are definitely estopped from raising the same now by such Petition by overlooking their own conduct. The class so created and so accepted by the parties based upon the relevant facts and circumstances at the relevant time, cannot be compared with the class and/or the employees who got the benefit, based upon the changed facts and circumstances. The class, therefore, so created, under the circumstances, in no way, sufficient to accept the case of the Petitioners as demanded and as prayed. Everything is different and so also the circumstances. 52 J. H. Jadhav (supra), as referred and relied upon by the learned counsel appearing for the Petitioners, principally referring to the concept of “industrial dispute” as contemplated under Section 2(k) of the ID Act is also of no assistance. The concept so settled need no further discussion. The requirement is the facts and circumstances of the case to consider the rival submission raised by the parties. The Petitioners, if unable to destroy and/or unable to justify their case revolving around letter dated 14.01.2005 and admittedly they accepted the benefits and acted upon the settlement and also gave clear declaration/affidavit and declared not to challenge the same and/or to waive their rights, definitely snapped the relationship of employer and employees themselves. They, in no way, can be stated to be still in service of the Respondent. The relationship, as contemplated and as required, if crystalised and/or ceased by their own or by the party's volunteered action resulted into various signed documents, ends it. 53 Tulip Star Hotels (supra) was another citation read and referred by the learned counsel appearing for the Petitioners. In that, the Apex Court has dealt with Section 28 of MRTU & PULP Act, 1971 and its relevant aspects referring to the enforcement of the VRS. The aspect of relationship, though discussed, but considering the facts and circumstances of the present case and no such situation was there, no way assist the Petitioners to accept their case by overlooking the binding settlement. The learned counsel appearing for the Respondent pointed out that the matter was remanded by the higher court. The aspect of relationship, though discussed, but considering the facts and circumstances of the present case and no such situation was there, no way assist the Petitioners to accept their case by overlooking the binding settlement. The learned counsel appearing for the Respondent pointed out that the matter was remanded by the higher court. 54 Petroleum Employees Union (supra) again referred to Item 9 of MRTU & PULP Act, 1971, where an issue of ex-gratia payment in lieu of bonus and taxation aspect was considered, is also of no assistance. The facts and circumstances were totally different, distinct and distinguishable. 55 The learned counsel appearing for the Petitioners has strongly relied on Ibrahim Hanif Mulani (supra) even before the Industrial Court. That was a case under Section 25-F, 25-G and 25-N of the ID Act. It is quite settled that a settlement cannot decide fate of workmen, agreeing to terminate their services in violation of the provisions of law. The validity of the same, in a given case, if material placed on record, can be tested by the Court. In the present case, considering the similar averments made in the complaint, referring to the demand letter and the point of reference made, the common evidence led by the parties, no where based on the foundation of breach of any provisions of law. The parties, admittedly, based upon then existing facts and circumstances, agreed and settled the matter which was never stated and/or alleged to be contrary to any provisions of law and in fact got the benefit out of it, now just cannot be permitted to say to overlook it and grant the additional benefit so claimed. It appears that they got disturbed and felt injustice as subsequently, some employees, in different circumstances, received much higher compensation. Therefore, though some allegations were made about unfair treatment, pressure but unable to support it also because of their conduct and the lapse of period/time. All were recipient of the compensation based upon the situation of relevant time being the different classes of employees. 56 Apart from this, the submission is also made by the Senior Counsel for the Respondent, referring to Walchandnagar Industries Limited (supra) that the said judgment is overruled by a Division Bench of this Court. All were recipient of the compensation based upon the situation of relevant time being the different classes of employees. 56 Apart from this, the submission is also made by the Senior Counsel for the Respondent, referring to Walchandnagar Industries Limited (supra) that the said judgment is overruled by a Division Bench of this Court. 57 The judgment cited by the learned counsel for the Petitioner in CeatLtd. (supra) referring to Items 5 and 9 of Schedule IV of MRTU & PULP Act as pointed out is also overruled in 2006 I CLR 804 – Ceat Ltd. vs. Anand A. Hawaldar (supra). 58 Another aspect is that admittedly the Respondent placed on record settlement dated 18.06.2005. The learned Industrial Court, as both the parties made their rival submissions and tested the evidence so led in which no way able to destroy and/or destruct the contents of the settlement (C-4), its annexures, the receipts, and other connected documents, i.e. the respective affidavits, application and letter dated 10.07.2007. Annexures “A” to “F” and the names and the signatures of workmen, who have accepted the terms of the settlement rightly considered and just cannot be overlooked. Annexure “A” shows the list of 21 ex-NOCIL employees belonging to Non-SSC Non-Technical category. Annexure “B” shows list of 19 ex-NOCIL workmen belonging to SSC Non-Technical category, Annexure “C” is the list of 34 ex-NOCIL declared unfit for employment by RPCL, Annexure “D” is the list of dismissed workmen, who do not desire to accept the settlement as on date. Annexure “E” is the list of four unfit persons who do not desire to accept the settlement as on date. Annexure “F” is the list of individual ULP complaints. There is a list referring to names and signature of workmen who have accepted the terms and above settlement. It shows that the employees in fact voluntarily accepted the terms and conditions and signed the document. It is not in dispute that this list became part and parcel of the settlement in question and duly proved in the Courts, with its contents. There is no specific denial of the signature and acceptance of those terms and conditions apart from the individual receipts of the amount. The relevant receipts, cheque, affidavit/declaration, just confirm the case of Respondent/management revolving around the binding settlement and its effect. There is no specific denial of the signature and acceptance of those terms and conditions apart from the individual receipts of the amount. The relevant receipts, cheque, affidavit/declaration, just confirm the case of Respondent/management revolving around the binding settlement and its effect. Some casual challenge, here or there and showing ignorance to the basic document by the key witness, by overlooking these documents and such conduct of all the employees itself destroy their own case, which they sought to be placed on record in favour of their demand and/or prayers. The inconsistent stand & even if challenged indirectly, on the ground that these Annexure were not the part of the original settlement and, therefore, ought not to have been and/or should not be accepted, in no way, support their case to grant the benefits/demands based upon the Notice/letter dated 14.01.2005. They themselves unable to support the case revolving around their own demand, in view of the undisputed position on record as referred above. The rejection of all the References by the learned Judge, in my view, need no interference. 59 The Petitioners have filed these Petitions though titled and referred to Articles 226 and 227 of the Constitution of India, the fact remains that the impugned order that they have challenged is of Industrial Court. The scope and purpose of Article 227 is unrestricted if case is made out, but it is also restricted, if no case is made out. The facts and circumstances, based upon the record and the law have been considered. There is no case of illegality or perversity and/or any breach of principle of natural justice and/or even any breach of any agreed terms and settlement. The order is well within the frame work of law and the record and the settlement. 60 The learned Judge has considered to some extent even the merits of the matter, based upon the evidence so led. The relevant portion and the reasoning so given have been dealt with in detail. However, having once noted the effect of settlement dated 18.06.2005 any prior action and/or activities as referred and discussed referring to the respective groups and/or matter looses its importance. If letter/notice dated 14.01.2005 goes and the settlement dated 18.06.2005 has attained finality, the demand so raised in 2008, in no way, sufficient to reopen the merits of the closed issues/matters. However, having once noted the effect of settlement dated 18.06.2005 any prior action and/or activities as referred and discussed referring to the respective groups and/or matter looses its importance. If letter/notice dated 14.01.2005 goes and the settlement dated 18.06.2005 has attained finality, the demand so raised in 2008, in no way, sufficient to reopen the merits of the closed issues/matters. No case is made out by the Petitioners to overlook this settlement and consider their case on merits, based upon the prior events referring to letter dated 14.01.2005. The alleged information through the Right to Information Act, 2005 in no way sufficient to destroy and/or supersede and/or take away the accrued rights of both the parties. All are bound by it. There remains no `industrial dispute' as these employees ceased to be the `workmen'. 61 It is relevant to note and as noted, it is only because of payment of about Rs. 22 lacs as financial compensation to other employees in the year 2006 by the management, the Petitioners in all the matters wants to claim the benefits as per the letter dated 14.01.2005 and raising the claim of Rs. 16 lacs towards the difference. This, in no way, sufficient reason to overlook and/or revoke the settlement. As already noted, no other challenges and/or grounds raised in the complaints as well as even in the Petitions, except making averments about tremendous physical, mental as well as social harassment to submit their resignation and leave the employment. They failed to prove any of these grounds by any material. The complaints, therefore, so filed and the submissions so raised, in my view, also are not sufficient to accept their cases. However, it is made clear that parties are still at liberty to settle the matter but the Court, in no way, for want of material on record, and as recorded interfere and/or revoke the settlement already arrived at and as both the parties have in fact acted upon at the relevant time. There is no even prayer to the effect that the settlement is null, void and/or bad in law as they have already got the benefit out of the same. There is no even prayer to the effect that the settlement is null, void and/or bad in law as they have already got the benefit out of the same. 62 The learned counsel appearing for the Petitioners referred and pointed out that the learned Industrial Court has decided and/or dismissed the individual Reference by Common Order, by referring to separate Award, as referred above, yet in the operative part of the order, some reference numbers are missing. Rule 31 of the Industrial Disputes (Bombay) Rules, 1957 which is reproduced as under, permits the Board, Court, Labour Court, Tribunal or Arbitrator to suo motu or on an application made by any of the parties concerned correct any clerical mistake or error arising from an accidental slip or omission in any award so passed, or issues. “31 Correction of errors. – A Board, Court, Labour Court, Tribunal or Arbitrator may at any time suo motu or on an application made by any of the parties concerned correct any clerical mistake or error arising from an accidental slip or omission in any award it or he issues.” 63 Following are the cases/reference numbers which are missing in the operative order of the Industrial Tribunal. Sr.No. Writ Petition No. Case No. Name of the Petitioner 1 7689/2012 12/2009 BhushanGovind Parab. 2 7681/2012 14/2009 MahendrasingRam Thakur 3 8360/2012 17/2009 Suresh Shriram Dhanawade 4 8361/2012 18/2009 NarayanDhaku Shigwan. 5 7690/2012 23/2009 RaghunathMaruti Dhone. 6 7684/2012 26/2009 ArunLaxman Kulkarni 7 7680/2012 07/2009 PandharinathS. Patil 8 7682/2012 25/2009 NareshDaulat Mahadik 64 As per the learned counsel appearing for the Petitioners, some Reference numbers are missing, though they were party to the proceedings and these cases are also covered by the judgment in all respects. There is no serious dispute so far as this part is concerned that their cases/complaints/References are governed and covered by those References. The missing numbers in the operative part, in my view, therefore is apparent error. Rule 31 of the Rules, if permits the Court to pass an appropriate order, therefore, there is no reason that this Court while disposing of all these Petitions by the common judgment/order, cannot direct to correct and/or to add Reference numbers in the respective Awards. The missing numbers in the operative part, in my view, therefore is apparent error. Rule 31 of the Rules, if permits the Court to pass an appropriate order, therefore, there is no reason that this Court while disposing of all these Petitions by the common judgment/order, cannot direct to correct and/or to add Reference numbers in the respective Awards. All the Petitions are heard and being disposed of by this common Judgment, I am inclined to observe that these Petitions are also disposed of by this common judgment in all respects, treating their References as a part and parcel of the operative part of the order. The appropriate correction deemed to have been made accordingly. There is no reason to keep these Petitions pending only for so-called correction so referred. The other such Petitions are also disposed off accordingly. 65 Though the basic facts and circumstances are referred and relied upon of Writ Petition No.4810/2012, but as recorded above, this covers all the matters and the writ petitions of all the groups of the Petitioners/employees in question. In every matter, the admitted settlement dated 18.06.2005 is involved. All are covered and governed by the same. The evidence was led accordingly apart from their respective group case, as referred in earlier paragraphs. I am inclined to dispose of by this common Judgment all other Writ Petitions on same grounds and similar reasons in all respects. Both the parties still entitle to settle the matter to end the dispute. 66 Resultantly the following order: ORDER (a) All the Writ Petitions are dismissed. (b) The parties are still at liberty to settle the matters. (c) There shall be no order as to costs.