Sarva Shramik Sangh vs V.V.F. Limited And Anr.
2001 Latest Caselaw 592 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. Both these Writ Petitions filed under Articles 226 and 227 of the Constitution of India are essentially directed against the Award passed by the Industrial Tribunal, Mumbai dated August 29. 1996 in Reference (IT) No. 103 of 1988. Writ Petition No. 1336 of 1997 has been filed by the Sarva Shramik Sangh-Union of the workmen employed under the Respondent-Company the Vegetable Vitamin Foods Company (Private) Limited, whereas Writ Petition No. 481 of 1998 has been filed by the Respondent Company challenging the correctness of the aforesaid Award as well as the order dated February 13, 1998 passed by the Industrial Court, on the application filed by the Company being Misc. Application No. 397 of 1988 under Reference (IT) No. 103 of 1988, which was for review, purported to have been filed under Rule 31 for correction of certain clerical error in the Award. In the circumstances, I am disposing of both the Writ Petitions together as they involve common questions arising out of the same reference proceedings. For the sake of convenience the parties would be described as Company and Union, respectively.

2. Briefly stated, the company is engaged in the manufacture of fatty acids, glycerine, steric acids, acid oil, etc. in its factories in Bombay. The company employed about 400 workmen. The workmen employed by the Company are represented by two Unions, namely, Sarva Shramik Sangh and V.V.F. Employees Union. In this matter we are concerned with the demands made on behalf of the workmen represented by Sarva Shramik Sangh, which has been referred to as Union. According to the Company, the other Union known as V.V.F. Employees Union represented majority workmen at the relevant time. Both the unions had submitted Charter of Demands. In so far as Sarva Shramik Sangh is concerned, they had served Charter of Demands on November 2, 1987. The said Union also addressed a letter dated January 25, 1988 to the Deputy Commissioner of Labour, Conciliation in relation to the Charter of Demands. It is not in dispute that the Company after deliberations with the other Union, namely, V.V.F. Union signed settlement on April 22, 1988. The settlement arrived at between the Company and the said V.V.F. Union was sent to the appropriate authority, vide letter dated May 10, 1988. On the other hand, the present Union, namely, Sarva Shramik Sangh did not the accept the settlement but persisted with their Charter of Demands. In the circumstances, the Conciliation Officer reported failure of conciliation; consequent to which the Government of Maharashtra, the appropriate Government, made reference with regard to the Charter of Demands of the S.S.S. Union of November 4, 1988. Reference was made to the Industrial Court, Mumbai, enlisting in all 19 demands. It is relevant to note that while the said reference was pending the other Union, namely, V.V.F. Union entered into another settlement with the company on June 1, 1991. This settlement is stated to be a final settlement with regard to their pending demands. These are the two relevant settlements in the backdrop of which the proceedings before the Industrial Court will have to be adjudicated. However, to complete the narration of events, it would be relevant to point out that thereafter other two settlements have been arrived at between the Company and the said V.V.F. Employees Union in the year 1995 and another on January 7, 1997. It is also relevant to note that out of total 400 workmen about 263 workmen have accepted the settlement arrived at between the Company and the V.V.F. Union. This fact has been noted even by the Industrial Court. It is thus stated that majority of the workmen are signatories to the settlement so arrived with the company and that they have availed of the benefits and facilities in terms of the above said settlements of 1988 and 1991. It also appears from the record, as noted by the Industrial Court, that even some of the workmen who are represented by Sarva Shramik Sangh in the present reference, have taken advantage of the aforesaid settlements pursuant to the interim award. It is relevant to note that, the Company is having two Units, one at Sion and another at Sewree. It is not in dispute that, besides the present reference, in the past two other references were made and award in reference (IT) 242 of 1981 has been passed in respect of Unit at Sion, whereas award in reference (IT) No. 184 of 1983 has been passed for Sewree Unit. In the backdrop of the said proceedings and having regard to the Charter of Demands raised by both the Unions, the Company negotiated with the Union which represented the majority of the workmen and succeeded in striking a settlement dated April 23, 1988 and full and final settlement of the then pending demands on June 1, 1991. The Company, therefore, contested the present reference. It is not in dispute that both the Unions are unrecognised unions and, therefore, the Industrial Court had no option but to examine the rival claims. On the other hand, if the V.V.F. Employees Union was a recognised Union then the settlements arrived at by the Company with the said Union, outside the Conciliation proceedings would have bound all the employees irrespective of the fact whether they were represented by the said Union or not. The company resisted the demands mainly on the ground that majority of workmen have already entered into settlement in writing with the Company and the said settlement has been duly intimated to the appropriate authority coupled with the fact that majority of the workmen have taken benefits of the said settlement. The company, therefore, contended that the settlement so arrived at with other Union, namely, V.V.F. Employees Union, which represented majority of workmen, should be presumed to be just and reasonable and the same be made applicable even to the workmen represented by the minority Union by passing award in terms of the said settlement. On the other hand, Sarva Shramik Sangh Union took the stand that the settlement arrived at between the Company and the other Union was not binding on the workmen represented by them. According to them, the settlement was arrived at with a Committee of the workers and not with any Union. It was further contended that under the said settlement, workmen were discriminated in as much as categories A,B, and C were carved out and workers were distributed in three categories without any attempt to ascertain their length of service, etc. The thrust of the grievance was that settlement with other Union was brought about only to defeat the claim of the members of Sarva Shramik Sangh since they were prosecuting for higher demands. Accordingly, the justness and reasonableness of the two settlements was assailed before the Industrial Court. The Industrial Court on the basis of the rival stand formulated in all five issues. While answering the first issue, the Industrial Court has concluded that the settlement arrived at with majority of workmen is fair and proper. The Industrial Court also independently examined the respective demands which were referred for its adjudication. The Industrial Court has passed award not only in terms of settlements of 1988 and 1991 but also in terms of settlement of 1995. The Company is dissatisfied with the latter part of the award founded on settlement of 1995. According to the Company, that was not the subject matter for adjudication before the Industrial Court, whereas independent reference is pending being reference (IT) No. 13 of 1996 in that behalf. The Union on the other hand, challenges, the approach of the Industrial Court in passing award in terms of the settlement and for not accepting the demands as put forth by them. The Union has also made a grievance that the Industrial Court in any case has committed serious error in passing award in terms of said settlement overlooking Clause (9) of the settlement which provides that benefits under the settlement shall be extended to only such workmen who are prepared to accept the said settlement by giving individual undertakings for their agreement and to receive benefits thereof. Accordingly, both the counsel addressed the Court on various aspects. On the basis of the said submissions the issues that would broadly arise for my consideration would be as follows:

"1. Whether the settlements of 1988 and 1991 can bind the workmen who are not signatories thereto?

2. Whether the workmen who are not signatories to the said settlements would be competent to pursue the Charter of Demands raised by them in respect of which reference has been made to the Industrial Court?

3. Assuming that such workmen could prosecute the reference and persist with their charter of demands, is the Industrial Court required to examine the said demands on merits inspite of the settlements arrived at between the Company and majority of workmen of all the pending demands which would include the demands in respect of which reference was pending before the Industrial Court?

4. Even if such workmen could press the demand, the scope of interference by the Industrial Court in such adjudication?"

3. The foremost point which came up for consideration during the course of arguments is whether Sarva Shramik Sangh has any locus to maintain this Writ Petition? In this context, the counsel for the Union submits that, although the Reference was between the Company and the workmen employed under it, but it is the Sarva Shramik Sangh, who had espoused the cause of the said workmen and for that reason had locus to maintain the writ petition in this Court. He submits that, the Court should take into account the substance of the proceedings and not go by the form or the description of the parties before the Industrial Court and in the Writ Petition. To support his submission he has placed reliance on Section 36 of the Industrial Disputes Act, which postulates that the workman who is a party to the dispute shall be entitled to be represented in any proceeding under this Act, which includes by any member of the executive or other office bearer of a registered trade union of which he is a member. According to him, the proviso to Sub-section (1) inserted by Amendment Act of 1976 would fortify his argument. He submits that, the said proviso postulates that where there is a recognised Union for any undertaking under any law for the time being in force, no workman in such undertaking shall be entitled to be represented as aforesaid in any proceedings except by such recognised Union. He, therefore, submits that, in the present case since there was no recognised union, the workmen could be represented by Sarva Shramik Sangh which was unquestionably a registered trade union. In support of this submission, he has placed reliance on the decision of the Apex Court reported in Mumbai Kamgar Sabha v. Abdulbhai, . Reliance has been placed on paras 7 to 9 of the said decision which reads thus:

"7. Fairness to respondent's counsel constrains us to consider in limine a flawsome plea forcibly urged that the Union figured as the appellant before us but being no party to the dispute (which was between the workers on the one hand and the establishments on the other) had no locus standi. No right of the Union qua Union was involved and the real disputants were the workers. Surely, there is terminological lapse in the cause-title because, infact, the aggrieved appellants are the workers collectively, not the Union. But a bare reading of the petition, the description of parties, the grounds urged and grievances aired, leave us in no doubt that the battle is between the workers and employers and the Union represents, as a collective noun, as it were, the numerous humans whose presence is indubitable in the contest, though formally invisible on the party array. The substance of the matter is obvious and formal defects, in such circumstances fade away. We are not dealing with a civil litigation governed by the Civil Procedure Code but with an industrial dispute where the process of conflict resolution is informal, rough and ready and invites a liberal approach. Procedural prescriptions are handmaids, not mistresses, of justice and failure of fair play is the spirit in which Courts must view processual deviances. Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical mis-descriptions and deficiencies in drafting pleading and setting out the cause title create a secret weapons to non- suit a party. Where foul play is absent, and fairness is not faulted, latitude is a grace of processual justice. Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues peripheral, procedural shortcomings. Even Article 226, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individuals rights, although the traditional view, backed by precedents, has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianisrn permits taking liberties with individualisation of the right to invoke the higher Court where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law. Therefore, the decisions cited before us founded on the jurisdiction under Article 226 are inept and themselves somewhat out of tune with the modern requirements of jurisprudence calculated to benefit the community. Two rulings of this Court more or less endorse this general approach: Dhabolkar, and Newabgani Sugar Mills .

8. All this apart, we are dealing with an industrial dispute which, in some respects, lends itself to more informality especially in the matter of union representation. Technically, the Union cannot be the appellant, the workmen being the real parties. But the infelicity of drafting notwithstanding, the Union's role as merely representing the workers is made clear in the description of the parties. Learned counsel took us through Section 36(1) and (4) of the Act. Rules 29 and 36 of the Central Rules under that Act, Section 15(2) of the Payment of Wages Act and some rulings throwing dim light on the rule regarding representation in industrial litigation. We deem it needless to go deeper into this question, for in industrial law, collective bargaining, union representation at conciliations, arbitrations, adjudications and appellate and other proceedings is welcome development and an enlightened advance in industrial life.

9. Organised labour, inevitably involves unionisation. Welfare of workers being a primary concern of our Constitution (Part IV), we have to understand and interpret the new norms of procedure at the prelitigative and litigative stages, conceptually recognising the representative capacity of labour unions. Of course, complications may arise where inter-union rivalries and kilkenny cat competitions impair the peace and solidarity of the working class. It is admitted, in this case, that there is only one Union and so we are not called upon to visualize the difficult situations, counsel for the respondents invited us to do, where a plurality of unions pollute workers unity and create situations calling for investigation into the representative credentials of the party appearing before the Tribunal or Court. It is enough, on the facts of this case, for us to take the union as an abbreviation for the totality of workmen involved in the dispute, a convenient label which, for reasons of expediency, converts a lengthy party array into a short and meaningful one, group representation through union being familiar in collective bargaining and later litigation. We do not expect the rigid insistence on each workman having to be a party to nominee. The whole body of workers, without their names being set out, is, in any case; sufficient, according to the counsel for the respondents, although strictly speaking, even there an amount of vagueness exists. For these reasons, we decline to frustrate this appeal by acceptance of a subversive technicality. We regard this appeal as one by the workmen compendiously projected and impleaded through the Union."

4. There is force in the submission made by the learned counsel for the Union that the Petition need not be thrown out on technical ground that the subject Award has been challenged by Sarva Shramik Sangh and not by the workmen of the Company, who were parties to the reference. I have no hesitation in accepting the submission advanced on behalf of the Union that the Petition be considered as if having been filed on behalf of the workmen themselves since Sarva Shramik Sangh is only a representative of the said workmen and more particularly having regard to the fact that the matter is mainly between the said workmen and the Company and not involving any issue relating to inter-Union rivalry as such. In the circumstances, Writ Petition as presented can be treated to be one filed by the workmen of the Company, who were parties to the Reference in which the subject Award has been passed.

5. With regard to the other issues articulated in para 2 above, it would be apposite to advert to the various decisions of the Apex Court. The first decision relied upon is in the case of Jhagrakhan Collieries (P) Ltd. v. G.C. Agarwal, Presiding Officer, Central Govt. Industrial Tribunal-cum-Labour Court, Jabalpur and Ors., . This decision deals with the argument that the settlement arrived at in the course of the conciliation proceedings is binding not only on the actual parties to the industrial dispute but also on the heirs, successors or assigns of the employer on the one hand, and all the workmen in the establishment, present or future, on the other. It is further held that in extending the operation of such a settlement beyond the parties thereto, Sub-section (3) of the Section 18 departs from the ordinary law of contract and gives effect to the principle of collective bargaining. But Sub-section (3) cannot be invoked where the Court finds that a settlement arrived at between the employer and the workmen is not a settlement arrived at in the conciliation proceedings. The Apex Court has further held that according to the scheme of Section 18 read with Section 2(p) an agreement, made, otherwise than in the course of conciliation proceedings, to be a settlement within the meaning of the Act must be a written agreement signed in the manner prescribed by the rules framed under the Act. The Apex Court has further observed that if a settlement arrived at, not being one in the course of conciliation proceedings, the same would be enforceable only against the parties thereto.

6. The next decision to which extensive reference will have to be made for deciding the present matter is of the Apex Court in the case of Herbertsons Ltd. v. Workmen of Herbertsons Ltd. and Ors., . In this case the Apex Court in para 15 has negatived the submission made on behalf of Mumbai Mazdoor Sabha Union, which was the minority Union to hear the appeal on merits. In this context the Apex Court observed that:

"We are not prepared to accept the position, as urged by the 2nd respondent, that even if the settlement is binding on the parties executing the document, namely, the company and the 3rd respondent representing a large majority of the workmen, since the same is not binding on the members of the Mumbai Mazdoor Sabha Union, howsoever small the number, under Section 18(1) of the Industrial Disputes Act, the appeal should be heard on merits."

These observations have been made by the Apex Court while finding fault with the approach of the trial Court as to whether the settlement arrived between Company and the Respondent No. 2 Union was fair and just and if it was found to be so, then whether to allow the parties to be governed by the settlement substituting the award. The Apex Court further went on to observe that since a recognised and registered union had entered into a voluntary settlement, and when the Court found that the same was just and fair than it could be allowed to be binding on all the workers, even if a very small number of workers were not members of the majority union. In para 16 the Apex Court has further observed that the numerical strength of the members of the 2nd respondent, who are workers of the company, would also have an important bearing as to whether the settlement accepted by the majority of the workmen is to be considered as just and fair. The Apex Court further took notice of the fact that not a single worker of the company claimed before the Tribunal to be a member of the 2nd Respondent and to assert that the settlement was not fair and just. This fact was highlighted by the Apex Court because all the workers of the Company had accepted the settlement and also received arrears and emoluments in accordance with the same. Even in the present case, not even a single worker of the company claimed before the Tribunal to be the member of Union and to assert that the settlement was not fair and just. Moreover, it is established from the record that majority of the workers have accepted the settlements and also received emoluments in accordance with the same. In para 18 of the said decision, the Apex Court has observed 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 labour, enters into a settlement in the best interest of the workmen. This would be the normal rule. The Court further observed that there can be exceptional cases where there may be allegations or mala fides, fraud or even corruption or other inducements.

Understood thus, the justness or reasonableness of the settlement arrived at by the Company with the majority Union can be questioned only in such exceptional situation. The Court would be justified in presuming that since majority of the workmen are signatories to the settlement and have accepted the same, therefore, the terms of settlements are just and fair. In the present case there is no allegation of fraud or corruption for questioning the justness of the settlements. But, the grievance made by the Union is that the settlement would result in discrimination between workers and that it overlooks the strength of the workmen and length of their service. To my mind, such a challenge cannot qualify the test of exceptional circumstances. The fact that the majority workmen have agreed to accept the settlements, which categorises workers into three categories on some understanding arrived at between the parties before the settlement then there ought to be presumption that such terms of settlement are just and fair. Merely because the other Union, which is a minority Union, asserts that it would result in discrimination cannot be the basis of doubting the justness and reasonableness of the settlements. The emphasis given by the Apex Court is to scrutinize the settlement as a package deal. The Apex Court has, at more than one place observed that, the totality of the terms of the settlement will have to be examined to find out whether the settlement is just and reasonable. In para 21 of the same decision the Apex Court has observed that, so far as the parties are concerned there will always be uncertainty with regard to the result of the litigation in a Court proceedings, and when negotiations take place there is always give and take. Even in the present case, reference was pending and during the pendency of the said reference, Union representing majority of the workmen has entered into a settlement on June 1, 1991 which is stated to be full and final settlement of the pending demands which would cover the demand under reference. The Apex Court has, therefore, observed that when settlement takes place it has to be encouraged, particularly between labour and employer in the interest of general peace and well-being and that the settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance, etc. it cannot be said that the settlement as a whole is unfair and unjust. In para 25 of the said decision, the Apex Court has further observed that there may be several factors that may influence parties to come to a settlement as a phased endeavour in the course of collective bargaining. Once cordiality is established between the employer and labour in arriving at a settlement which operates well for the period that it is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding friction and unhealthy litigation. The Apex Court has observed that this is the quintessence of settlement which Courts and Tribunals should endeavour to encourage. It is further observed that, the settlement has to be judged in that spirit and not by the yardstick adopted in scrutinising an award in adjudication. In para 27 of the Judgment the Apex Court has further observed that it is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad, unless it can be demonstrated that the objectionable portion is such that it completely outweighs all other advantages gained, the Court will be slow to hold a settlement as unfair and unjust. The Apex Court, therefore, concluded that the settlement has to be accepted or rejected as a whole as unfair and/or unjust.

7. Applying the principles underlying the aforesaid decision, the Industrial Tribunal has answered the reference and proceeded to pass award in terms of the settlements. While doing so, the Industrial Court has considered all the relevant matters including the fact that under the subject settlements Rs. 950/- per month was granted to the workers by way of special allowance. The settlement also proceeds on the premise that it is a complete package instead of granting benefits as demanded separately and, therefore, increase of Rs. 950/- per month was granted by way of special allowance which attracted bonus, provident fund and gratuity. The Industrial Court has rightly observed that the Union has not been able to point out any particular clause to show that the same was not in the interest of the workmen at large or that the objectionable portion had completely effaced all other benefits gained under the settlement. In absence of this, as observed by the Supreme Court, the settlement will have to be presumed to be fair, just and reasonable. One of the grievances made before the Tribunal and which was reiterated before this Court was that the reference pertained only to daily wage workers/daily rated workers belonging to the categories such as unskilled, semi-skilled, skilled, highly-skilled, drivers, peons and watchmen, but the subject settlements covered monthly rated employees and the same has been signed by the monthly rated employees. This grievance is also taken care of by the clear stand taken on behalf of the Company, as reproduced in para 38 of the Judgment that, all the employees shall be considered at par whether they be monthly rated or daily rated, on the basis of the subject settlement. The Union has challenged the subject settlement by contending that, it only provides marginal increase for unskilled workers and there is no settlement for highly skilled workers, whereas most of the demands raised by them have remained unresolved. In view of the principle enunciated by the Apex Court in Herbertson's case it will have to be held that neither the Industrial Court nor this Court could question the justness and reasonableness of the settlement which have been arrived at by majority of workmen with the Company on such peripheral matters. As observed by the Supreme Court, the settlement cannot be scanned in bits and pieces and hold some parts good and acceptable and the others bad. On the other hand, settlement is to be either accepted or rejected as a whole as unfair or unjust. The grievance now made on behalf of the Union referred to above are wholly impertinent so as to question the justness and reasonableness of the settlement. As observed by the Apex Court, the totality of the terms of the settlement will have to be examined being a package deal and it would appear that the workmen have gained in the matter of wages by way of special allowances which would also attract bonus, provident fund and gratuity. In my view, no fault can be found with the Industrial Court when it has answered issue No. 1 against the Union and held that the settlement arrived at with majority of the workmen is fair and proper. Accordingly, in my view, the Industrial Court has applied the correct test for judging the fairness and reasonableness of the subject settlements.

8. I shall make reference to another decision of the Apex Court in the case of Tata Chemicals Ltd. v. Workmen employed under Tata Chemicals Ltd., . In this case the Apex Court was called upon to examine whether the settlement covered the demand of variable Dearness Allowance raised by the Union whether the reference by the Government was invalid and the Industrial Tribunal was incompetent to make the award in question during the currency of settlement arrived by the employees Union which had been recognised under Code of Discipline; whether acceptance of the benefit from the settlement not only by the members of the majority Union, but also by the members of the Sangh Employees and is the Sangh precluded from raising the demand. In so far as the last question is concerned, the same may not be relevant for our purpose. Because, that is not the basis on which the company has opposed the reference. However, with regard to the first two questions referred to above, the ratio of the Apex Court's decision is that the employees Union which has been duly recognised under the Code of Discipline arrives at an agreement with the company it would not operate as legal impediments in the way of the Sangh which was not a party to the agreement to raise a demand or dispute with regard to the variable dearness allowance linked to actual costs of living. The Industrial Tribunal will have to go into the dispute. The Court observed that a minority union can validly raise an industrial dispute Section 2(k) of the Act, which defines 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. However, in the present case, neither before the Industrial Court nor before this Court the Union, or the worker who is not party to the subject settlement have demonstrated as to which of the demands could be considered de hors the settlements. In that sense, that is not the scope of enquiry insisted upon by the Union. On the other hand, as mentioned earlier, the justness and reasonableness of the settlement have been questioned on matters which are not germane to hold that subject-settlements are unjust and unfair as contended. No doubt, this decision of the Apex Court would suggest that the Sarva Shramik Sangh, which was not a party to the agreement or settlements, could validly raise industrial dispute. However, the moot question is: even if such a dispute is raised what should be the scope of adjudication by the Court? As observed earlier, from the view taken in Herbertson 's case (supra) it would clearly appear that even if such a dispute is raised the Court shall prefer to bind even the other workmen who are not party to the settlement. Thus, the workmen represented by the minority union who were not signatories to the settlements can be bound by the settlement if the same is just and fair. As seen earlier, the overwhelming majority has accepted the settlement and, therefore, there would be presumption that the same is just and fair. This view is fortified even by the later decision of the Apex Court reported in Tata Engineering and Locomotive Co. Ltd. v. Workmen, Vol. 13 (S.C.) Labour Judgment page 623. In this case the Supreme Court mainly relied on the observations in Herbertsons case to take the view that after settlement had been arrived at by a vast majority of the concerned workers with their eyes open and was also accepted in its totality it must be presumed to be just and proper and not liable to be ignored while deciding the reference merely because a small number of workers were not parties to it or refused to accept it or because the Tribunal was of the opinion that the workers deserved marginally higher emoluments than they themselves thought they did. The Apex Court reiterated that a settlement cannot be weighed in any golden scales and the question whether it is just and fair has to be answered on the basis of principles different from those which come into play when an industrial dispute is under adjudication. In this decision, the Apex Court, no doubt, recognised that the minority union of the workers may raise an industrial dispute even if another union which consists of the majority of workmen enters into settlement with the employer, but went on to observe that, in such a case, the company would be justified in contending that the settlement is just and fair and the reference be answered accordingly. This contention has found favour with the Apex Court in the said case. The said decision can also be relied for the proposition that the onus to prove falsity of the assertion in the case of any particular workman is rested heavily on the union. In the present case, it is seen that no grievance has been made before the Industrial Court or for that matter before this Court that the settlement was the outcome either of impersonation or suffers from the vice of fraud. No such case has been made out. However, it is now contended before this Court that, it was the duty of the Court to verify as to which signatories to the settlement have accepted the amounts of emoluments under the subject settlement. In the first place, no grievance was made before the Industrial Court and as such it will not be open for the Union to raise such a plea for the first time before the Writ Court. In any case, as observed earlier, the onus about falsity would be on the Sarva Shramik Sangh to establish that some or none of the signatories to the settlement have accepted the emoluments as per the settlement. No such evidence has been brought to my notice; accordingly the submission now advanced is obviously fallacious and one of desperation.

9. Besides the aforesaid decision, the counsel for the company has placed reliance on an unreported decision of the Supreme Court in the case of Peico Electronics & Electricals Ltd. v. Pieco Employees Union and Ors. in Civil Appeal No. 2942 of 1995 decided on May 3, 1995. The Supreme Court in this case has proceeded in the premise that, in absence of there being a recognised Union, the "bargaining agent" on behalf of the workmen can only be the Union which has the majority of the workmen as its members. The Supreme Court further went on to observe that when the majority of the workmen have agreed to the terms of the settlement, and in fact, settlement has already been implemented qua them; in such a situation it is not necessary for the Court to go into the various other questions raised before the Court. In fact, the Apex Court has held that the Court will not be justified in brushing aside the wishes of the majority of workmen on technical grounds. In this decision, the Apex Court has referred to its earlier decision which has held that collective bargaining is the principal raison d 'etre of the trade unions and that this approach will be in conformity with the concept of collective bargaining and "industrial peace." From this decision it follows that when settlements are entered into between the company and registered union having majority of the workmen as its members then such settlements will have to be understood to be the outcome of collective bargaining and respected even by the Courts. In other words, the Courts cannot lightly brush aside such settlement unless the same is found to be unjust or unreasonable. As observed earlier, in the present case, it is not possible to take the view that the subject settlement arrived at between the company and V.V.F. Employees Union is unjust and unreasonable as contended by the Sarva Shramik Sangh.

10. The learned counsel for the Union has relied on decision of the Apex Court in State of Orissa v. Sudhansu Sekhar Misra to contend that the decision is only an authority for what it actually decides. He relied on para 13 of the said decision, where the Supreme Court has observed that what is of essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it, This proposition cannot be doubted. However, in the present case this issue does not arise in as much as the aforesaid decisions of the Supreme Court are very clear and there is no occasion for making distinction between the observation or ratio of the decision.

11. Reference has also been made to one of the decisions of this Court reported in ICI Ltd. v. N.A. Kadam and Ors. 1993 (1) CLR 378. This decision essentially refers to the law enunciated by the Supreme Court in Tata Chemicals Ltd. case, Herbertson 's case, and General Manager, Security Paper Mills, Hoshangabad case, which decisions have already been referred to hereinbefore. The view taken in this decision is that where the workers of the industrial establishment are represented by more than one union entering into the settlement with one of the recognised unions gives rise to a somewhat complex situation. Those that are parties to the settlement through the Union, of which they are members are not free to agitate the issues settled. As regards them, there is no industrial dispute. As to the others, there being no bar, there can be an industrial dispute raised by such workmen with regard to their conditions of service, settlement notwithstanding. By placing reliance on these observations in para 23, the learned counsel for the Union contends that inspite of settlement the workmen represented by the Union could raise industrial dispute and if such a dispute was raised it was the duty of the Court to examine the same on merits. In my view, this decision is not an authority on the proposition that if dispute is raised by the minority union inspite of settlement by majority workmen, then the Court is bound to decide the matter on its own merits. If we were to take such a view it would lead to anamolous situation inasmuch as the settlement would bind the workers who are signatory thereto and were represented through majority union, but the workers represented by the minority union would be governed by the Award. As observed by the Apex Court this would obviously lead to causing breach of industrial peace and such a situation needs to be avoided. On the other hand, if we were to apply the principle enunciated by the Apex Court that the settlement though not binding on parties or persons, because they were not parties thereto, but if demand is raised by such persons then the Court would apply the terms of settlements, even to such persons by passing award in those terms unless it is shown that the settlement as a whole is unjust and unreasonable. Only such a view would obviate the possibility of an anomalous position, of different service conditions being applied to two sets of workers employed by the same company.

12. For the aforesaid reasons, I am of the view that it was unnecessary for the Industrial Court to dwell upon the merits of each singular demand even after recording its opinion that the settlement was just and fair. To my mind the appropriate order that could be passed in such a situation is to pass an award in terms of the settlement so that it would bind even those workmen who are not signatories to the settlement. This is precisely what has been done in the present case. In that sense, the Award under challenge needs no interference except to the extent that the award is passed in terms of the settlements for the years 1988 and 1991 only and that too excluding Clause (9) of the Settlement.

13. As observed earlier, the only controversy before the Industrial Court in the present case was with reference to the settlements of 1988 and 1991. The submission advanced on behalf of both sides were also directed only on the basis of these two settlements. The Industrial Court while recording the submission of the counsel, in para 25 of its judgment has noted that the Company's counsel urged that the Tribunal be pleased to make award in terms of the settlements of the years 1988 and 1991 to ensure industrial peace and harmony in the enterprise. In the entire body of the Judgment the matter has been examined by the Industrial Court in the context of the two settlements of 1988 and 1991. In other words, the settlement arrived at by the Company with the majority Union in the year 1995 was not in issue before the Industrial Court in the present reference; and, therefore, the Industrial Court ought not to have passed award in terms of the said settlement. Understood thus, the operative order passed by the Industrial Court will have to be modified to this limited extent by excluding settlement of 1995. It is not in dispute that, in so far as the settlement of 1995 is concerned, independent reference is pending before the Industrial Court being Reference (IT) No. 13 of 1996. Accordingly, I find substance in this argument of the counsel for the Company. No doubt, the counsel for the union contends that the Industrial Court was not unmindful while making reference to settlement for the year 1995, however, the said submission is devoid of merits. In the circumstances, I would accept the submission made on behalf of the counsel for the Company that the operative order passed by the Industrial Court mentioning settlement for the year 1995 is wholly unwarranted in the present case.

14. For the aforesaid reasons, the , following order is passed:

Writ Petition No. 1336 of 1997 is partly allowed. Clause (ii) of the operative part of the Award passed by the Industrial Court is modified to the extent that the award in terms of the settlements for the year 1988 and 1991 excluding Clause (9) of the said settlements.

Writ Petition No. 481 of 1998 is allowed and Clauses (ii) and (iii) of the Award stands modified by deleting settlement for the year 1995.

In other words, the operative part of the Award passed by the Industrial Court stands modified in the following manner:

"i) The reference is partly allowed.

ii) Award in terms of the settlement for the years 1988 and 1991 excluding Clause (9) thereof is hereby passed. Copies thereof shall be produced by the employer duly certified for being annexed with the Award to be published.

iii) The First Party Company is hereby directed to distribute the amount given under different settlements of the years 1988 and 1991 under different heads taking into consideration the demands raised in the present Reference within a period of six months from the date of publication of this Award, after taking into consideration the representations of the beneficiaries under this Award.

iv) The First Party Company is hereby further directed to give benefits of all the settlements to all the employees after adjusting the amount already paid under such settlements.

v) The break up of amounts under different heads, as stated above, shall attract the incidental wherever required under law and the same shall be over and above paid under the said settlements.

vi)"Award accordingly."

Both the Writ Petitions are disposed of in the above terms with no order as to costs.