Kamgaranchao Ekvott, A Trade ... vs Mumbai Mazdoor Sabha, Formerly ...
2004 Latest Caselaw 308 Bom

JUDGMENT

C.K. THAKKER, C.J.

1. This appeal is filed against a judgment and order dated 26th April, 2002 of the learned single Judge of the High Court of Judicature, Bombay at Goa Bench in Writ Petition No. 332 of 2001.

2. Before we deal with the contentions raised by the parties and the decision of the learned single judge, few relevant facts may be stated:

3. It is the case of the appellants that the workmen of the erstwhile Hindustan Ciba-Geigy Ltd. de-merged into M/s. Syngenta India Ltd. and M/s. Ciba Speciality Chemicals India Ltd. (respondent Nos. 2 and 3 respectively), submitted a Charter of Demands on May 11, 1993 through Mumbai Mazdoor Sabha, respondent No. 1 herein. The Commissioner of Labour called the parties to get the matter settled. Since, however, no settlement could be arrived at, he submitted a Failure Report in July, 1995 to the Appropriate Government. By an order dated 23rd August, 1995, the Appropriate Government (Government of Goa) was pleased to refer the dispute for adjudication to the Industrial Tribunal, Goa at Panaji which was registered as Reference IT No. 38 of 1995. It was the case of the appellant union that several employees of respondent No. 1 union resigned from the first respondent union and joined the appellant union. They also withdrew the authority given to respondent No. 1 represent them in industrial dispute pending before the Industrial Tribunal, Goa. The appellant union, therefore, made an application on September 11, 2000 (Ex.37), to the Tribunal making a prayer that it may be joined as party to the Reference. Another application was also made by the appellant union on 29th September, 2000, for the similar relief (Ex.40). It was stated in the applications that employees of respondent Nos. 2 and 3, who were members of respondent No. 1 union had joined appellant union and hence the appellant union should be joined as party respondent in the industrial dispute.

4. Respondent No. 1 union objected the applications and prayer made by the appellant union contending inter alia that the appellant union was neither necessary nor proper party to the Reference and the applications were liable to be dismissed.

5. The Industrial Tribunal considered both the applications, Exhs. 37 and 40, as also the objections raised by respondent No. 1 union. Finally, by an order dated 30th November, 2000, the Tribunal allowed both the applications and impleaded appellant union as party to the Reference.

6. In the order below Exhs.37 and 40, the Tribunal observed that majority of the workers who were with respondent No. 1 union had resigned from the membership and had become members of the appellant union. It also observed that a settlement had been arrived at between the appellant union and the Company. The said settlement was required to be proved before the Tribunal in the Reference at the instance of respondent No. 1 union which was pending. In the circumstances, the prayer made by the appellant union that it should be joined as party respondent was well founded and deserved to be allowed. The Tribunal also considered the cases cited before it and stated that since the question whether the settlement arrived at by the appellant union was fair, just and reasonable or not would have to be considered by the Tribunal, the appellant union was right in submitting that it should be joined as party respondent. Accordingly, the prayer was granted and appellant union was joined as party respondent.

7. Being aggrieved by the order passed by the Tribunal, the first respondent union approached the High Court of Judicature at Bombay, Goa Bench. The learned single Judge by an order dated 26th April, 2002 held that the Tribunal had committed an error of law and of jurisdiction in granting Exhs.37 and 40 by joining appellant union as party respondent. He also observed that since the members of the appellant union had arrived at a settlement with the company, there did not appear to be any industrial dispute in existence. If it were so, according to the learned single Judge, presence of appellant union was not necessary in industrial dispute between respondent No. 1 on the one hand and respondent Nos. 2 and 3 on the other hand. The appellant union was, therefore, neither necessary nor proper party and the Tribunal ought not to have granted the applications.

8. The learned Judge proceeded to state:

"Undoubtedly, the petitioner union is reduced to a minority in the sense that majority of its workmen have joined the respondent No. 3 and have settled their disputes. However, six of the workmen who continued to be the members of the petitioner union would be free to agitate their demands. It was rightly submitted by Mr. Singh, the learned counsel appearing for the petitioner, that while adjudicating the dispute, the Court say hold the settlement to be fair, just and proper and may pass award in terms of the settlement arrived at by the respondent No. 3 union with the respondents 1 and 2 companies or the Industrial Tribunal may grant the petitioner union more benefits than what is settled between the parties. However, that is a matter which will be dealt with by the learned Presiding Officer of the Industrial Tribunal after the evidence of the parties is adduced in the proceedings. One thing is clear that those of the workmen who have settled their disputes are not necessary parties to the proceedings as in between them and the employer as no industrial dispute exists."

He further stated;

"It is true that the Industrial Tribunal would be called upon to decide whether the settlement arrived at between the respondent No. 3 Union and the respondents 1 and 2 companies is a just, fair and proper settlement of the dispute. The employers, parties to the reference would have to establish before the Industrial Tribunal that the settlement is just, fair and proper. The workmen who have entered into a settlement, may be examined as witnesses by the employers, in its attempt to establish that the settlement is just, fair and proper. Unless the workmen take exception to the settlement and complaint to the Industrial Tribunal that the settlement is unjust, unfair or improper, the workmen are not necessary parties to decide whether the settlement is just, fair and proper."

9. The learned single Judge conceded that the order of impleadment of a party was a discretionary exercise of power on the part of the Court and the High Court should not normally interfere in exercise of its writ jurisdiction with such a discretionary order. According to the learned single Judge, however, as the appellant union was neither necessary nor proper party, the exercise of jurisdiction by the Industrial Tribunal was arbitrary, and deserved interference. Accordingly, the petition was allowed and the order passed by the Tribunal on 30th November, 2000 was set aside.

10. We have heard the learned counsel for the parties. Since the matter was from Goa Bench and had been ordered to be placed for hearing at Mumbai, we asked the learned counsel for the parties to argue the matter finally so that it can be disposed of by a judgment. The parties agreed and accordingly we have heard them finally.

11. The learned counsel for the appellant contended that the learned single Judge has committed an error of law as well as of jurisdiction in passing the impugned and in setting aside the order of the Industrial Tribunal. Apart from the fact that an order of joining of party is discretionary and normally it should not have been interfered with in exercise of extraordinary jurisdiction of the Court, in the facts and circumstances, hen the order was legal, valid and in consonance with law, the same could not have been set aside.

12. The appellant union was having majority of members. The said fact had not been disputed even by respondent No. 1. A settlement had been arrived at between the appellant union and the Company but the appellant union was and is also interested in the dispute pending before the Industrial Tribunal. That relevant consideration had been taken into account by the Tribunal and applications Exhs. 37 and 40 were allowed. The order passed by the learned single Judge, quashing that order of the Tribunal could not be said to be in consonance with law and deserves to be quashed.

13. The learned counsel for respondent No. 1, on the other hand, supported the order passed by the learned single Judge. It was submitted that the discretion had not been properly exercised by the Tribunal on sound judicial principles. The learned single Judge was, therefore, right in upsetting the finding and in observing that exercise of discretionary power was arbitrary which called for interference. He also submitted that since settlement had been arrived at by respondent NO. 1 with the Company, nothing remained to be done so far as respondent No. 1 was concerned. It, therefore, could not be said that learned single Judge was wrong in not treating the appellant union as necessary or proper party and the order needs no interference. He also submitted that there is no dispute between the members of respondent No. 1 union and the Company. The dispute which remained, is pending and will be decided is the dispute between the first respondent and the Company. He, therefore, prayed that the Letters Patent Appeal deserves to be dismissed.

14. Having heard the learned counsel for the parties and having considered the rival contentions, in our opinion, the Letters Patent Appeal deserves to be allowed. So far as the appellant union is concerned, admittedly it is having majority members. The said fact is admitted by respondent No. 1 Union. It has been indicated in the order passed by the Tribunal and also by the learned single Judge. The question, therefore, is whether the appellant union can be said to be necessary or proper party to Reference No. IT 38 of 1995. The settlement is on record. It is dated 26th September, 2000. Clause 35 of the said settlement relates to general conditions. Sub-clause (2) of Clause 35(35.2) is material and reads thus:

"The Management and the workmen agree that this Settlement is in full and final settlement of the dispute excluding that of the demand pertaining to the temporary workmen which is the subject matter of reference IT/38/95. Those demands not specifically mentioned in this settlement excluding that of temporary workmen are deemed to have been settled as withdrawn. The Management and the workmen agree to jointly approach the Industrial Tribunal of Goa and pray for an award for disposing of the pending reference IT 38/95 excluding that of temporary workmen in view of this settlement in so far as the employees of this Company are concerned."

From the above clause, it is clear that the management and the workmen agreed that the settlement was "full and final" "excluding that the demand pertaining to the temporary workmen which is the subject matter of reference IT/38/95". It is thus clear that the settlement which has been arrived at specifically refers to Reference IT/38/95. It also mentions a demand pertaining to temporary workmen which is the subject matter of Reference IT/38/95 which is pending. The Industrial Tribunal, therefore, in our opinion, rightly relied upon decisions of the Supreme Court in Hochtier Gammon v. Industrial Tribunal, Bhubaneshwar, Orissa, (1950-83) 7 SCLJ 653 (SC) and Tata Engineering and Locomotive Co. Ltd. v. Workmen, (1981) II LLJ 429 (SC). To us, the Tribunal was also right in distinguishing a decision of this Court in V.V.F. Employees' Union v. S.M. Limaye and Ors., (1990) I CLR 359 (Bom). In V.V.F. Employees' Union, as rightly observed by the Tribunal, there were two disputes and two references. The workmen represented by one Union settled its dispute in respect of demands made by it covered by the settlement and the dispute thus came to an end. So far as the other union was concerned, certain demands were raised which did not result into a settlement. Obviously, therefore, the first union which had settled its dispute was neither necessary nor proper party to the second dispute which was raised by another union. This court also observed that there was no dispute in existence so far as the first union was concerned, in view of settlement arrived at between the parties. The dispute raised by another union was totally different, distinct and independent. The said dispute concerned the members of the other union and the union which had settled the matter had no interest therein. A prayer by that union to be joined as party in respect of demands made and dispute raised by the second union, therefore, was totally ill-founded and misconceived.

15. This is not the position here. As is clear, the settlement which had been arrived at itself referred to the dispute pending in Reference IT/38/95. It also expressly recited the fact that the settlement would exclude the demand pertaining to temporary workmen, which was the subject matter of Reference IT/38/95. It, therefore, cannot be said that the appellant union was not concerned or interested in the Reference IT/38/95 and was neither necessary nor proper party. In our opinion, it is, therefore, necessary for the Tribunal while dealing with Reference IT/38/95, to keep in mind terms and conditions of settlement dated 26th September, 2000. In our considered opinion the Tribunal was right in observing that the demand as to permanency would be subject mater of the dispute pending before the Tribunal i.e. Reference IT/38/95.

16. In paragraph 8, the Tribunal observed:

"In the present case there are no separate charter of demands raised by two unions namely the Kamgar Sabha and the applicant union. The settlements which have been signed with the companies namely Novartis India Limited and Ciba Speciality Chemicals (India) Ltd., are in respect of the same charter of demands which were served but Kamgar Sabha on the employer and which demands are the subject matter of the present reference as can be seen from the reply filed by the company Ciba Speciality Chemicals (India) Ltd., as well as the settlement dated 30th August 2000 produced by the said company. It is clearly mentioned in the said settlement that the said settlement is in respect of the demands raised by the workmen through Kamgar Sabha vide letters dated 11.5.93, 7.6.95 and 26.6.95 and the said demands are the subject matter of the present dispute. Since the settlement is in respect of the demands already raised by the workmen earlier through Kamgar Sabha and which is the subject matter of the present dispute the judgment of the Himachal Pradesh High court in the case of Village Papers Pvt. Ltd. (supra) relied upon by Adv. Shri Shaikh the learned counsel for the Kamgar Sabha that there is no industrial dispute because there is no demand on the employer has no application. In my view the judgment of the Bombay High Court in the case of V.V.F. Employees Union is not applicable mainly for the reason that in that case separate demands were raised by the two unions against the employer and a settlement was signed by the employer with the one union in respect of the demand raised by it and that union wanted to be impleaded as a party to the dispute which was referred to the Tribunal in respect of the demands of the other union which were not settled. The High Court held that since the demands of the union who wanted to be impleaded as party were settled it has no legitimate right to be impleaded as a party to the dispute. It is therefore evident that the facts in the case before the Bombay High Court were different from the one in the present case, as the settlements signed by the applicant union are on behalf of the workmen not in respect of its any separate charter of demands but they are in respect of the same demands which were raised by the workmen through Kamgar Sabha".

17. The Tribunal then stated:

"I have gone through the settlement dated 30th August, 2000 produced b the Company Ciba Speciality Chemicals (India) ltd., which is signed by the said company with applicant Union. Clause 30.2 (sic 35.2) of the said settlement states that the parties are entitled to approach this Tribunal in this reference for Award in terms of the said settlements. The said settlement is entered into by the majority of the workmen through the applicant union and therefore the said settlement has direct bearing on the dispute in the present case. Whether the settlement is valid and binding or whether award can be passed in terms of the settlement are the matters incidental to the main issue which is the charter of demands and in respect of which according to the applicant union the said settlement have been arrived at. These issues cannot be decided in the absence of the workmen who are represented by the applicant union. I may mention here that it is within the right of the parties in the reference to settle their disputes by enter into settlements and it is the duty of the Tribunal to ascertain whether the settlement is reasonable or not. This cannot be done unless the parties are given; the opportunity of being heard. It is therefore necessary that the workmen who have resigned from the Kamgar Sabha be allowed to be represented by their union which is the applicant union in the present case. In view of what is discussed above, I am of the view that the applicant union is a necessary party to the present dispute/reference and it is required to be impleaded so as to make the adjudication effective and enforceable. I, therefore hold that the applicant union has made out a case for adding it as a party to the present dispute/reference and hence the applications dated 11.9.2000 and 29.9.2000 filed by it are liable to be allowed."

There is no doubt in our minds that it is the duty of the Tribunal to ascertain whether the settlement arrived at between the appellant union and the company is just and reasonable and it cannot be decided unless the appellant union is afforded an opportunity to have its say. The prayer of the appellant union to be joined as party, hence, could not be rejected.

18. The learned single Judge, in our opinion was not right in interfering with the discretionary order passed by the Industrial Tribunal. Tough conscious of the fact that normally the High Court should not interfere with such order and though the learned single Judge observed in the order that while deciding Reference IT/38/95, the Tribunal has to consider whether the settlement arrived at by the appellant union with the Company was just, fair and reasonable, he held that the presence of the appellant union for that purpose was not necessary. In the opinion of the learned single Judge, whether the settlement was just, fair and reasonable or not could be decided even in absence of the appellant union and necessary witnesses can be examined. In our opinion, however, when that question is required to be decided in Reference IT/38/95 and when Clause 35.2 made it clear that the settlement excluded demand pertaining to permanency of temporary workmen which is subject matter of Reference IT/38/95, the learned single Judge ought not to have interfered with the order passed by the Tribunal.

19. For the foregoing reasons, in our opinion, the order passed by the learned single Judge deserves to be quashed and set aside and the order passed by the Industrial Tribunal deserves to be confirmed. The order passed by the learned single Judge, therefore, is hereby set aside and the order passed by the Industrial Tribunal, Goa at Panaji is restored. Letters Patent Appeal is accordingly allowed. In the facts and circumstances of the case, however, there shall be no order as to costs.

20. In view of the above, no order on Civil Application.

Parties be given copies of this order duly authenticated by the Sheristedar/Private Secretary.