Shivanand Madanmohan Mishra And ... vs Universal Ferro And Allied ...
2004 Latest Caselaw 432 Bom

JUDGMENT

B.R. Gavai, J.

1. Rule returnable forthwith. Shri V.R. Thakur, learned Counsel waives notice on behalf of the respondent No. 1 and Shri S. D. Thakur, learned Counsel waives notice on behalf of the respondent No. 2. Heard finally by consent.

2. The petitioners, who were the employees of respondent No. 1, Company, have filed the present petition challenging the order passed by the learned Industrial Court Maharashtra (Nagpur Bench) in Complaint (ULP) No. 1024/1999 thereby dismissing the complaint of the petitioners. The facts in brief giving rise to the filing of the present petition are as under.

3. That the petitioners/complainants have filed a complaint before the learned Industrial Court, Nagpur praying for declaration that the agreement dated 2-6-1999 entered into between the respondent Nos. 1 and respondent Ho. 2 to be illegal, void ab initio, non est still born and of on consequence and effect and that the resignations of the petitioners and other workers obtained by the respondent No. 1 through the aid of connivance of respondent No. 2 were illegal, void ab initio and for a direction that the petitioners and others workers continue to remain in service and to pay them all wages, allowances and other benefits to which they are entitled in law and arrears thereof till the date of reinstatement. The petitioners had filed the complaint under Section 28 read with Item Nos. 1(a),(b) (d) and 5 of Schedule-IV and Item No. 3 of Schedule-III of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred as the Act). The petitioners have alleged in the complaint that the respondent No. I is engaged in the manufacture of ferro manganese and silico manganese and has two units at Tumsar. It is alleged that the respondent No. 1 has about 1200 workers on its roll. The petitioners further alleged that they were appointed as labour by the respondent No. 1 with effect from 19-10-1990 and 1-3-1982 respectively and their services were unblemished and they were entitled to all the benefits and allowances as per the provisions of law.

4. The petitioners have further averred in the complaint that though the respondent No. 1 was running factory, it suddenly displayed a notice in its Notice Board, stating that, from 20th September, 1996, till the Maharashtra State Electricity Board restores power to the factory of respondent No. 1, the factory would be treated as laid off, in respect of workmen employed in the manufacturing/production and in other related areas and that they would be paid lay off compensation, as provided under Industrial Disputes Act, 1947 (hereinafter referred as ID Act). The respondent No. 2, Union claiming that the said lay off was illegal, has filed complaint ULP No. 1129/1996 under the provisions of Section 28 of the said Act. Along with the complaint, the respondent No. 2 has also filed an application for interim relief. It is averred that vide order dated 20th November, 1996, ad-interim relief was granted after filing of the Written Statement and reply to the application for interim relief. The learned Industrial Court by order dated 10th December, 1996 allowed the application for interim relief and issued a direction to the respondent No. 1 not to deduct any wages from the salary of the employees. It is further averred that the learned Industrial Court also held that the lay off was in violation of Section 25M of the ID Act.

5. It is further averred, that, being aggrieved by the order passed by the learned Industrial Court, the respondent No. 1 filed Writ Petition No. 449 of 1997 in this Court. The said writ petition came to be admitted on 26-3-1997, directing to the respondent No. 1 to pay 50% of the salary during the pendency of the petition. Being aggrieved by the aforesaid order, the respondent No. 2, herein, filed LPA No. 57 of 1997. The Division Bench vide order dated 7th May, 1999 observed that, it was desirable that the learned Single Judge, would decide the Writ Petition finally preferably on or before 30th June, 1997. Vide the aforesaid order, liberty was given to the appellant in the LPA to move the learned Single Judge for modifying the interim relief to 100% wages.

6. It is further averred that when the matter was listed before the learned Single Judge on 26th April, 1999, the learned Single Judge observed that since the matter was pending before the BIFR, the respondents were at liberty to approach BIFR and seek modification. This Court directed the matter to be posted after the BIFR took the decision in the matter.

7. It is further averred in the complaint, that the BIFR passed an order on 13-5-1999 in the case No. 64/1998, by which IDBI was appointed as Operating Agency, to examine the viability and to prepare a viability study report, keeping in view of the provisions of Section 18 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred as the SIC Act). It is further alleged that, as the respondent No. 1 lost its battles, relating to the orders passed on laying off its workmen, the respondent No. 1, filed application under Section 22(1) and (3) of the SIC Act for suspending all legal proceedings. It is averred that the BIFR passed an order dated 7-4-1999, thereby suspending all contracts, assurance of property, agreement, settlement, awards or other instruments to which the respondent No. 1 Company was a party , for a period of three months. It is contention of the complainants that during the said period of three months, the respondent No. 1 could not have entered into any agreement.

8. It is further alleged in the complaint, that the respondent No. 1 in collusion with the respondent No. 2 wanted to terminate several of its workers on pick and choose method and, therefore, they entered into an agreement dated 2-6-1999, wherein it was agreed that in case the workmen/employees voluntarily resigned, they would be paid certain amounts. According to the complainants, they were not informed about entering into such an agreement by the respondent No. 2 and that the agreement was entered into surreptitiously. It is the contention of the petitioners, that though the respondent No. 1 had made a farce of giving wide publicity of the said agreement, in fact no publicity was given and the petitioners for the first time came to know about the same when the respondent No. 1 filed its reply to the complaint in ULP No. 84 of 1999 (Complaint filed by the petitioners in the Labour Court, Bhandara).

9. The petitioners further allege that when they went to the factory to report their attendance on 19-6-1999 and 14-6-1999, the Factory Manager of the respondent No. 1 told them that there was a Voluntary Resignation Scheme and that if they opted for it they would stand to gain, as the respondent No. 1 was not in a position to run the factory and that it was to close the factory. It is alleged that the Factory Manager asked the petitioners to sign on the printed form. It is alleged that the office bearers of the respondent No. 2 had already signed those printed forms as witnesses. It is the contention of the petitioners that they were not even permitted to read the said letter by the Factory Manager. The petitioners submit that they had signed the said letter, bona fide believing that the factory was to be closed down and that they would get the payment more than the statutory payments. It is submitted that about 1000 employees from all the categories had opted for the said scheme. It is the allegations of the petitioners that the said resignation letters were obtained by fraud. The petitioners contended that by Clause (vii) of the said agreement, it was agreed between the parties therein as under :

"In view of the pendency of the proceedings before BIFR in Case No. 64/1998, copy of this agreement would be filed before BIFR for approval."

10. It is alleged that though the agreement stipulated so, the respondent No. 1 without obtaining the approval of BIFR introduced the Scheme of Voluntary Retirement. It is further contended that even the IDBI was not consulted before introducing the scheme of voluntary retirement and this act on the part of the respondent No. 1 itself is unfair labour practice and against the terms and conditions of the agreement.

11. It is further alleged that the respondent No. 2, Union had joined hands with the respondent No. 1 and that they had decided as to which workers were retained to be in service and which workers were to be thrown out from the employment. It is alleged that such of those workers who were to be retained, were already informed by the respondents, that they should not opt for voluntary retirement. According to the petitioners, the entire process of laying off the workmen, moving the BIFR, securing resignation letters from all the workmen, accepting the money paid from some employees so as to retain them in service etc. was a game plan fraudulently conceived by the respondents so as to eliminate several workmen whom the respondents did not like. According to the petitioners, this amounts to unfair labour practice on the part of the respondent No. 1 within the meaning of Item Nos. 5 and 10 of Schedule-IV of the Act and Item No. 3 of Schedule-III of the Act. It is further alleged that the respondent No. 1 was engaged in appointing the new workers/employees. In case respondent No. 1 wanted to recruit anyone, he can recruit some persons who were illegally terminated, under the guise of Voluntary Resignation Scheme. Various other allegations have been made in the said complaint.

12. On being noticed, the respondent No. 1 filed its written statement. The respondent No. 1 has denied all the allegations made by the complainants in the complaint. The respondent No. 1 has raised certain preliminary objections in the Written Statement. First preliminary objection raised by the respondent No. 1 is that the present complaint jointly filed by the petitioners was not maintainable. The second preliminary objection raised by the respondent No. 1 is that the complaint in question was filed on 29-11-1999, wherein the petitioners challenged the agreement dated 2-6-1999 and as such the complaint was filed beyond the period of limitation, which was 90 days. The respondent No. 1, has further averred that, the petitioners have not only acted in terms of the impugned agreement, but have also derived benefits thereunder, flowing from voluntary separation. It is, therefore, contended that the petitioners cannot approbate and reprobate at the same time. The next preliminary objection on behalf of the respondent No. 1, is that since the petitioner is governed by the provisions of Bombay Industrial Relations Act (BIR Act), respondent No. 2 which is a Representative Union, can only file the complaint under Section 28 of the Act and it cannot be filed by anyone else. The next preliminary submission is that, on the date of filing of the complaint, the petitioners were not employees, as understood within the meaning of term "employee" defined in Section 3(13) of the BIR Act and as such the complaint at their behest was not tenable. Without prejudice to the preliminary submissions, the respondent No. 1 has also replied para wise in the written statement and has denied the allegations made by the petitioners.

13. The respondent No. 1 has averred that the Industrial Establishment at Tumsar comprises of two units. First Unit is called domestic plant which caters to domestic market and the second unit is 100% export oriented unit. It is averred that the ferro alloys manufacture is power intensive operation and electricity is the basis raw material. The respondent No. 1 has further averred that the Central Government had formulated a policy in or about April, 1994, whereby National Thermal Power Corporation Limited (NTPC) was to supply electricity to ferro alloys units in the Country at a concessional rate, on the condition that such units be dedicated export oriented units. According to the said policy, the power was to be released by NTPC and was to be made available through the concerned Electricity Board. The concerned State Electricity Board was to charge only reasonable wheeling and electricity duty. It is submitted that in view of the aforesaid policy, the Government of India addressed a letter dated 20th June, 1999 to the Government of Maharashtra stipulating therein that Union of India would supply additional 28 MWV of power to the Government of Maharashtra This additional supply would be ex-Korba via the Korba-Koradi line for supply only to the petitioner Company's Export Oriented Unit at Tumsar. Cost of such power would be reimbursed by the Company to the NTPC. Such supply would be on regular basis i.e. on a continuous basis to cater to the Company's requirement and that only the wheeling charges would be reimbursed by the Company. The respondent No. 1 submits that on the basis of this express representation by the concerned parties, the company set up a dedicated 100% export oriented unit at Tumsar on 1st October, 1994. It is submitted that, however, the Maharashtra State Electricity Board (MSEB) resorted to its own interpretation of the terms and conditions regarding concession granted to the company and went on issuing electricity bills as per its old rates. It is contended that due to high handedness on the part of MSEB, the bills were at the rate more than 100% than the rates which were payable by the respondent No. 1 to the MSEB. It is submitted that this culminated in disconnection of power supply of the Company by MSEB on 19th September, 1996, which resulted in the production activities of the respondent No. 1 coming to a standstill. It is submitted that in these circumstances, on 1st November, 1996, the respondent No. 1 displayed a notice regarding lay off. The respondent No. 1 has further submitted that on 29th November, 1996, it filed a Writ Petition No. 2911 of 1996 in this Court against the MSEB, Government of Maharashtra, NTPC and Union of India praying for several reliefs. The rest of the averments in the written statement regarding litigation before the Industrial Court and this Court arising out of lay off, are already narrated while dealing with the averments in the complaint and hence need not be repeated. It is further averred that the respondent No. 1 was negotiating with MSEB and the negotiations culminated in terms whereby various concessions were offered to the respondent No. 1. It is submitted that the respondent No. 1 was, therefore, required to withdraw the Writ Petition No. 2911 of 1996. It is further averred that, however, after withdrawal of the Writ Petition, the MSEB again took unreasonable stand.

14. It is submitted that due to this situation, the Company became Sick Industrial Unit within the meaning of SIC Act. It is averred that the respondent No. 1, therefore, filed an application under Section 15(1) of SIC Act in the year 1998 and vide order dated 13th May, 1998, the BIFR declared the Company as sick industrial undertaking in terms of Section 3(1)(o) of SIC Act. It is submitted that in the afore/said order, the BIFR has stated that in the public interest, it was necessary to take steps as prescribed in Section 18 of SIC Act. It is further averred that the BIFR appointed IDBI as Operating Agency to examine the viability and prepare a viability study report keeping in view of the provisions of Section 18 of the SIC Act and, therefore, the matter was pending with BIFR. It is further averred that at the instance of Hon'ble Minister, a final proposal was communicated to the Company in the month of November, 1998 which was only concerning its 100% export oriented unit. It is further submitted that there were several meetings with the members of the representative unit by the management. It was pointed out by the management to the office bearers of the Union, that it was not possible to start the manufacturing operations with the existing work force; but only with reduced workforce efforts could be made, to restart part of manufacturing operations. It is submitted that the representative union extended its co-operation, in tiding over difficult situation and for restarting the manufacturing operations, after reconnection of electricity. In that situation, the management of the Company proposed the scheme for voluntary retirement. It is submitted that the Union deliberated over the matter with the employees of the company and after protracted negotiations spread over months an understanding was reached about the introduction of voluntary retirement scheme between the representative union and the company.

15. It is further submitted that on the basis of the aforesaid understanding reached between the Representative Union and the Company, a notice of change was given by the Company. It is further submitted that after notice of change, further negotiations were held and ultimately a memorandum of agreement, under Section 44(1) of the BIR Act was signed on 2nd June, 1999. On execution of memorandum of agreement, the same was forwarded to the registering authority and the registering authority subsequently registered the agreement as per the provisions of BIR Act.

16. The respondent No. 1 further submits that the agreement was given wide publicity. The copies of agreement with its Hindi translation were put on notice board at various prominent places in and around the work premises. It is submitted that in all 581 employees, submitted their resignations voluntarily and they were paid monetary benefits under the scheme. It is submitted that, each of the employee, including the petitioners had an option either to opt for the scheme or not. The complainant No. 1 submitted his resignation on 19-6-1999 whereas the complainant No. 2 submitted his resignation on 11-6-1999. Their resignations were duly accepted on 22-6-1999 and 14-6-1999 respectively. It is submitted that the workers who had not opted for voluntary retirement, under the scheme are continued in service and that the manufacturing operations of 100% export oriented unit commenced with effect from 18th August, 1999. It is further averred that, besides its regular employees, the Company has also engaged contract labour through its licensed contractors, depending on the need of the Company. The respondent No. 1 further submitted that since both the petitioners have filed Complaint being (ULPA) No. 84 of 1994 and (ULPA) No. 104 of 1999 before the learned Labour Court, Bhandara, the present complaint was not maintainable. In the remaining paragraphs, the respondent No. 1 has denied the allegations made by the petitioners.

17. The stand taken by the respondent No. 2 is almost same as that of respondent No. 1.

18. It appears that the respondent No. 1 had moved an application at Exh. 36 for framing preliminary issue which came to be rejected by the learned Industrial Court on 1st August, 2001. Being aggrieved by the said rejection, the respondent No. 1 had preferred Writ Petition No. 2500 of 2001 and vide order dated 17-1-2001, this Court directed to frame the issue in the matter and decide the matter within time bound programme. In view of the preliminary submissions, raised on behalf of the respondents, the learned Industrial Court decided the preliminary issues as to whether individual complaint in respect of alleged unfair labour practice is tenable, when representative Union under the BIR Act, 1946 is operating in respondent and complaints before Labour Court, Bhandara is pending and whether the Industrial Court had jurisdiction to decide validity of agreement dated 2-6-1999 between respondent No. 1 and representative Union and complainants have locus standi to challenge the said agreement in the complaint.

19. The learned Industrial Court, after considering the provisions of Section 20(2) of the said Act, the provisions of Sections 27-A, 32, 33 of the BIR Act and the various judgments of the Apex Court as well as this Court, held that the legality of the agreement cannot be challenged by the complainants under Section 28 of the MRTU and PULP Act. The learned Industrial Court held that for an individual employee, who has grievance about the representative union, the remedy lies by filing the reference before the Registrar. The learned Industrial Court also held that the complaint was filed beyond the period of limitation and as such was liable to be dismissed on the said count also. Being aggrieved by the aforesaid order of the learned Industrial Court dated 30th March, 2002, the petitioners have approached by way of instant petition.

20. Heard Shri Masood Shareef, the learned Counsel appearing on behalf of the petitioners, Shri V. R. Thakur, the learned Counsel appearing on behalf of the respondent No. 1 and Shri S. D. Thakur, the learned Counsel appearing on behalf of the respondent No. 2.

21. Shri Masood Shareef, the learned Counsel appearing on behalf of the petitioners submitted, that, the learned Industrial Court has grossly erred in dismissing the complaint of the petitioners, as not being maintainable. He challenged the order of the Industrial Court on various grounds.

22. Insofar as the findings of the learned Industrial Court, that, since the industry in question was governed by BIR Act, the complaints, filed by the petitioners in their individual capacity, was not maintainable, he submitted that the said finding is contrary to the various pronouncements of this Court. According to him, though there is a recognised union, insofar as the provisions of Section 28 of the said Act are concerned, the individual complaints on behalf of the employees were tenable if unfair labour practices are committed. He submitted that, only if any proceeding is related to unfair labour practice specified in Item Nos. 2 and 6 of Schedule-IV of the Act, the right of an employee from appearing is taken away. He submits that if the unfair labour practice, relates to other items, then an employee is entitled to file a complaint. He submits that, since the present complaint was preferred under Item No. 3 of Schedule-III and Item Nos. 5 and 10 of Schedule-IV, the complaints filed by the petitioners were maintainable and the learned Industrial Court has erred in dismissing the same. In support of his submissions, he relied on the judgment of the Apex Court in the case of Shramik Uttarsh Sabha v. Raymond Woollen Mills Ltd. and Ors., reported in 1995(1) CLR 607 and the judgments of this Court in the cases of Rama Bala Kate and Ors. v. Walchandnagar Industries Ltd. and Ors., reported in 1995(4) BCR 249; Bajirao Rajaram Patil v. Maharashtra State Co-operative Bank Ltd, and Anr., reported in 1997(1) Mh.L.J. 150 and Tata Hydro Electric Power Supply Co. Ltd. and Ors. v. Narendra L. Mansukhani and Co. reported in 7999(2,) Mh.L.J. 57 = 1999(1) CLR 741.

23. Insofar as the finding that the complaint was filed beyond the period of limitation, the learned Counsel has referred to the provisions of Section 45 of the BIR Act which reads thus :--

"An agreement registered under Section 44 shall come into operation on the date specified therein or if no date is so specified on its being recorded by the Registrar."

He submits that since in the agreement, the date is not specified, as to from when the agreement will come into force, the agreement has come into effect on 1-9-1999, i.e. the date on which the Registrar has granted the registration. He, therefore, submits that the complaint which is filed on 29th January, 1999 is within limitation as it is filed within 30 days from 1-9-1999.

24. Shri V. R. Thakur, the learned Counsel, appearing on behalf of the respondent No. 1, on the contrary submits that the findings of the learned Labour Court are just and legal. The learned Labour Court has rightly rejected the complaint of the petitioners being not maintainable.

25. He submits that since the Industry in question, is governed by the BIR Act, an individual employee is not entitled to file a complaint challenging the settlement, duly arrived at by the management and the respondent No. 2. He submits that, it is not so, as if that the employee is without remedy. He submits that, an employee can very well file the complaint, under item No. 1 of Schedule-IV, of the said Act for the alleged termination. He submits that, as a matter of fact, the petitioners have in fact, filed the complaints before the Labour Court, with the same allegations that are made in the present complaint. He submits that, since the petitioners failed to get interim relief in the complaint, filed by the complainants, in the Labour Court, they have approached this Court. In support of his submissions, that when an industry is governed by the provisions of BIR Act, a complaint challenging settlement, is not tenable at the instance of individual employee, he relies on the judgment of the Apex Court in the case of Shramik Uttarsh Sabha v. Raymond Woollen Mills Ltd. and Ors. (cited supra), the judgment of this Court in the case of Mansukh Gopinath Jadhav v. W.M. Bapat and Ors., reported in 1983 Lab.I.C. 1044 and the judgment of the Apex Court in the case of National Engineering Industries Limited v. State of Rajasthan reported in 2000 (I) LLJ 247.

26. Shri V.R. Thakur further submits that, since the petitioners have taken all the advantages and pecuniary benefits, from the VRS scheme, it is not permissible for them, now to turn back and say that the said VRS scheme is illegal. He submits that the petitioners cannot approbate and reprobate at the same time. In view of this submission, he relies, on the judgment of the Apex Court, in the case of Bank of India v. O.P. Swarnakar and Ors. .

27. In reply to the contention of the learned Counsel for the petitioners, that the industry had not obtained the prior permission of the BIFR, prior to entering into the VRS agreement, he submits that the provisions of Section 22(3), of the said Act are applicable to the contracts, agreements etc. existing on the date, on which the BIFR passes the order. According to him, no permission is necessary from BIFR for entering into an agreement, subsequent to the date of order. He however submits that, BIFR has in fact been apprised of the settlement, arrived at between the respondent No. 1 and the respondent No. 2, regarding the applicability of VRS scheme and rationalisation of labour, as it evident from the order passed by the BIFR dated 20th October, 1999.

28. Insofar as the findings of the learned trial Court, regarding the complaints being beyond limitation are concerned, he submits that the said finding is also just and proper. He submits that from the agreement, which has been executed on 2nd June, 1999, it is clear that the said agreement would come into immediate effect and, therefore, the limitation starts from the date of the execution of the agreement and not from the date of registration.

29. Therefore, the core question, that arises for consideration, in the present petition, is as to whether the petitioners are entitled to file a complaint, challenging the settlement, arrived at between the respondent No. 1 and respondent No. 2, in view of the provisions of the BIR Act. The Apex Court in the case of Shramik Uttarsh Sabha v. Raymod Woollen Mills Ltd. and Ors. (cited supra) considered the question as to whether the representative union under the Bombay Industrial Relations Act, 1946 has exclusive right to represent the employees, for the concerned industry, in complaints relating to unfair labour practices, under the said Act, other than those specified in Item Nos. 2 and 6 of Schedule-IV thereof. After taking into consideration the relevant provisions of the said Act and the BIR Act, this Court observed thus :--

"14. Section 21 of the MRTU and PULP Act, upon which emphasis was laid on behalf of the appellants, states that no employee in an undertaking to which the provisions of the Industrial Disputes Act applied shall be allowed to appear or act or be allowed to be represented in any proceeding relating to the unfair labour practices specified in items 2 and 6 of Schedule IV except through the recognised union. It is important to note that the reference is to employees is an undertaking to which the Industrial Disputes Act applies and not to employees in an undertaking to which the BIR Act applies. Apart therefrom, the section permits an employee, not an union other than the recognised union, to so appear. The provisions of Section 21 do not, therefore, lead to the conclusion that an union other than a representative union can appear in proceedings relating to all unfair labour practices other than those specified in items 2 and 6 of Schedule IV.

15. It is true that an order of the Industrial Court in the concerned proceedings would bind all employees of the first respondent even though there may be some among them who owe allegiance not to representative union but to the appellant. The objective of the provision of the BIR Act and the MRTU and PULP Act, read together, and the embargo placed upon representation by any one other than the representative of the employees, who, for the most part, is the representative union, except in matters pertaining to an individual dispute between an employee and the employer, is to facilitate collective bargaining. The rationale is that it is the interest of industrial peace and in public and national interest that the employer should have to deal, in matters which concern all or most of its employees, only with a union which is representative of them. It may be that a union which was representative of the employees may have in the course of time lost that representative character, it is then open, under the provisions of the BIR Act, for a rival union to seek to replace.

30. The Apex Court in the said case, upon considering the objective behind the provisions of the BIR Act and MRTU and PULP Act, has in unequivocal terms held that, an embargo has been placed upon the representation by anyone other than the representative of the employees, who in most of the cases, is recognised union. However, the Apex Court, has made it clear, that this embargo is not applicable pertaining to an individual dispute between an employee and the employer. The Apex Court, holds that, this is in the interest of industrial peace and in public and national interest, that the employer should have to deal in the matters, which concern all or most off its employees, only with a union which is representative of them. It is thus clear, that nature of relief in the present complaint, which seeks relief, on behalf of all other employees and other workers, is not tenable at the behest of the petitioners, who are not representative union. Reading the provisions of the said Act and the BIR Act together, would show that in the matters, which concern most of the employees, it is only the recognised union, that can represent the interest of employees. Insofar as the individual grievance of the petitioners is concerned, the petitioners have already sought the redressal of their grievance, by filing the complaint before the Labour Court.

31. The Division Bench of this Court in the case of M.G. Jadhav v. W.M. Bapat (cited supra) was considering an award passed in reference under Section 73-A of the BIR Act. The Division Bench of this Court, after considering the law laid down by the Apex Court in the case of Santuram Khudai v. Kimatrai Printers and Processors Pvt. Ltd. observed thus :--

"The combined effect of the various sections of the Act is to restrain the individual employee from appearing in the proceedings or objecting to the course adopted by the representative union for the settlement which the representative union enters into for the benefit of a large number of employees. The petitioner could not have resisted the settlement arrived at between respondents 2 and 3 before the Industrial Tribunal, nor could have challenged the passing of the award and as such it would not be proper to permit the petitioner to raise objection to the passing of the award, merely because, the petitioner claims that he represents some of the employees in the Factory of respondent 2. It is desirable that the bargaining power of the representative union should not be disturbed by an individual employee or a group of employees resisting the decision taken by the representative union, for the benefit of a large number of employees in a particular industry."

32. Rejecting the further contention on behalf of the petitioners, therein, that though the petitioner was not entitled to appear in reference, before the Industrial Court, still he was entitled to approach this Court under Article 226, this Court observed thus :--

"We do not find much merit in the submission because, in our judgment, if any employee is permitted to open the settlement arrived at between the representative union and an award passed thereto on these grounds, then there would be spate of litigation leading to the industrial unrest. The rivalries between the Unions or the dissatisfaction of some of the employees should not be permitted to disturb the bargaining power of the representative union. The anxiety of the Legislature in making provisions of the Act enabling only representative union to represent the employees is very salutary and we are not inclined to hold that is open for an employee to challenge the settlement arrived at by the representative union or any award passed thereon on the ground that the settlement is contrary to the provisions of law. In these circumstances, we are inclined to accept the preliminary objection of the respondents and hold that the petitioner is not entitled to file this petition."

33. It is thus clear, that this Court in unequivocal terms, has held that, it is not permissible, for an individual employee, to challenge the settlement, arrived at by the representative union or an award passed thereon, on the ground that the settlement is contrary to the provisions of law or that it is mala fide or that it is against the interest of employees.

34. The Apex Court in the case of National Engineering Industries Ltd. v. State of Rajasthan and Ors. (cited supra), while considering the validity of the settlement, arrived at between the parties in the conciliation proceedings, has observed that such a settlement binds all the parties, to industrial dispute and to all the persons employed in the establishment or part of the establishment. The Apex Court, further observed that the recognised Union, having majority of members, is expected to protect the legitimate interest of labour and enter into a settlement, in the best interest of labour. Such a settlement, is binding on all the workmen of the establishment. The Apex Court, further observed that, there can be many splinter groups, each forming a separate trade union. It is observed that, if every trade union, having few members, is to go on raising a dispute and the State Government, making reference, again and again, the very purpose of settlement is defeated. Thus, it can be seen that the sanctity of the settlement, arrived at between the management and the recognised Union, has been considered by the Apex Court, in various pronouncements, underlining its necessity, in the larger interest of industrial peace and public, as well as national interest. If few workmen, are permitted to challenge the sanctity of settlement, the very purpose of achieving the settlement, by the recognised union, in the best interest of the workmen, would be defeated.

35. Now, I propose to deal with the cases cited by Shri Masood Shareef, the learned Counsel for the petitioners. Insofar as the reliance placed on the decision of the Apex Court, by the learned Counsel for the petitioners, in the case of Shramik Uttarsh Sabha (cited supra), I find that the said reliance is wholly misplaced. The learned Counsel, relied on para 14 of the said judgment and in particular, the following observations.

"....The provisions of Section 21 do not, therefore, lead to the conclusion that an union other than a representative union can appear in proceedings relating to all unfair labour practices other than those specified in items 2 and 6 of Schedule IV."

36. The learned Counsel submits that, from the aforesaid judgment of the Apex Court, it can be found that, the Apex Court has held that, it is only other union than the representative union, which cannot appear in the proceedings related to unfair labour practices under the said Act. According to him, the restriction is not in case of individual employee and that individual employees can file complaints with respect to all unfair labour practices except Item No. 1 of Schedule-IV. With due respect, I am unable to agree with the said contention raised by the learned Counsel for the petitioners. Reading the entire judgment, it will be clear that the Apex Court has in clear terms held that in all matter, which concern all or most of its employees, it is only the representative union that will have right to participate in the proceedings. However, the Apex Court had made it clear, that in matters pertaining to an individual dispute between the employee and the employer, an employee may be entitled to seek redressal of his grievance, by filing individual complaint. But, in the case of the present nature, when the petitioners are seeking to challenge the settlement, also on behalf of other workers and which concern all the employees, the individual complaint of the petitioners would not be tenable. Insofar as the individual grievance of the petitioners is concerned, regarding their alleged termination, they have already filed a complaint before the Labour Court, Bhandara.

37. Insofar as the judgment of this Court in the case of Rama Bala Kate and Ors. v. Walchandnagar Industries Ltd. and Ors. (cited supra) is concerned, it can be seen that the complaints for consideration in the said case, were cases of individual dispute. Apart from that, it can be seen from the said judgment, that the question regarding the applicability of the BIR Act, was also not for consideration before the Court in the said case.

38. Insofar as the judgment of this Court, in the case of Bajirao Rajaram Patil v. Maharashtra State Co-operative Bank Ltd, and Anr. (cited supra) is concerned, the unfair labour practice, that was for consideration, before the Court was a transfer of an individually affected employee. The learned Single Judge, has himself observed in the said order that, "how can an order of transfer of any individual employee affect the general employees of an industrial establishment."

39. As I have already held hereinabove, that the ratio laid down in the case of Sharmik Uttarsh Sabha is that when the matter concerns, a majority of the employees, then only the embargo of not being represented in the proceedings, by anyone else other than recognised union would apply. However, in cases concerning the individual dispute, of an employee, an employee can always file a complaint for redressal of his grievance. I do not find any conflict with the view that I have taken and that has been taken by the learned Single Judge in Baburao Rajaram Patil's case.

40. Insofar as the reliance placed on Tata Hydro Electric Power Supply Co. Ltd. and Ors. v. Narendra L. Mansukhani and Co. (cited supra) is concerned, in the said case also, four individuals had approached the Court for redressal of their grievance. Insofar as the present case in concerned, from the complaint, it can be seen that, the petitioners are also espousing the cause of other workmen, which in my view, is not at all permissible in view of the law laid down by the Apex Court in the case of Shramik Uttarsh Sabha upon interpreting the provisions of the said Act and the BIR Act. As I have already held, insofar as the individual disputes, of the employees are concerned, they can very well file the complaints and in the present matter, the petitioners have in fact approached the Labour Court, Bhandara.

41. Now coming to the next point, as to whether the complaint is within limitation or not. The date of agreement is 2nd June, 1999. From the tenor of the agreement, it is clear that the parties to the agreement, intended to bring the agreement, into force with immediate effect. Not only this, but in response to the said agreement, the petitioners have in fact submitted their resignation letters on 19-6-1999 and 11-6-1999 respectively. They were also communicated the acceptance of their resignations by the Company, by letters, dated 26-6-1999 and 14-6-1999 respectively. It is thus clear that the said agreement, had come into effect immediately, on the date on which it is executed. The agreement has come into effect on the date specified in the agreement i.e. 2nd June, 1999 and not 1-6-1999, i.e. the date on which the agreement was registered. Thus, the finding of the learned Industrial Court, is required to be upheld, on this aspect also.

42. Insofar as the contention of the petitioners, that the order was passed by the BIFR, under the provisions of Section 22(3) of the said Act on 7-4-1999 and the agreement was executed on 2-6-1999 and, therefore, the same being without permission of BIFR, is null and void is concerned, I find no substance in the said contention. Firstly the learned Counsel for the petitioners, is not in a position, to point out any provisions, which mandates the previous approval of BIFR for executing the agreement, like the one in the present case. Apart from that, after execution of the said agreement, the BIFR has been apprised about the same, as is evident form the order of the BIFR dated 20th October, 1999.

43. Next question is regarding the submission made by Shri V.R. Thakur, the learned Counsel appearing on behalf of the respondent No. 1, that the petitioners, that having accepted the monetary benefits, in view of the scheme, it is not permissible for petitioners to challenge the same, as the petitioners cannot approbate and reprobate, at the same time. The Apex Court in the case of Bank of India (cited supra) has observed thus :--

"The Scheme is contractual in nature. The contractual right derived by the employees concerned, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand."

44. No doubt, the Apex Court in the aforesaid case, has held that the scheme for voluntary retirement is in the nature of contract. It is only an offer and it is not mandatory that the offer given must be accepted. But, once an offer is accepted one cannot resile from the same.

45. However, since the complaints filed by the petitioners are pending before the Labour Court, any observation on merits, in this matter, may adversely affect the rights of the parties, in the said complaints, I refrain myself, from making any observations on the submissions, made in this behalf by the learned Counsel for the respondent No. 1.

46. In the result, I hold that, the order passed by the learned Industrial Court dated 30th March, 2002, is just and proper and needs no interference. The petition is, therefore, dismissed. Rule is accordingly discharged with no order as to costs.