Badarpur Thermal Power Engineers ... vs Union Of India (Uoi) Through The ...
2006 Latest Caselaw 1337 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India making following prayers:

Prayer:

Under these circumstances it is therefore prayed that his Hon'ble Court may kindly be pleased to:

(i) issue an appropriate writ or writs directing the respondent No. 3 not to implement the settlement dtd. 31.5.1995 on the petitioner or its members in Badarpur Thermal Power Station; and

(ii) issue a writ or writs, order or orders declaring that the settlement dtd. 31.5.1995 is not a settlement arrived during the course of conciliation proceedings as envisaged under Section 12 of the Industrial Disputes Act and therefore it is not binding on the petitioner and its members;

(iii) pass any other order or orders which this Hon'ble Court may deem fit and proper under the circumstances of the present case.

2. Briefly the facts are that a settlement was arrived at between respondent No. 3 and four workers' union on 31.5.1995. By this settlement, provisions were made in respect of revised wages, allowances, service conditions and other benefits. The previous agreement/settlement was similarly entered into in 1989 and had expired in 1991. At the time when the agreement dated 31.05.1995 was entered into, there were five unions active in the Badarpur Plant namely:

NTPC Workers Union(affiliated to INTUC)

BTPP Employees Union (affiliated to BMS)

Badarpur Power Workers Union(affiliated to CITU)

Badarpur Vidyut Karamchari Union (affiliated to DMC)

Badarpur Power Engineers & Workers Union

3. Discussion regarding settlement in conciliation proceedings were held in which four, out of five unions had participated and the petitioner union had not participated. The petitioner union had written a letter to the conciliation officer that it had received the proposed settlement only on 30.5.1995 and it was asked to give its response by 3 pm on 31.5.1995, which was not practical and it also objected to the fact that talks of settlement were to take place at the office of the management. The allegations were made that the conciliation officer was under the influence of the management. None from the petitioner's union attended the settlement proceedings on 31.5.1995. However, the settlement was arrived at between respondent No. 3 and other four unions in presence of the Labour Commissioner.

4. In the writ petition, the petitioner has taken the stand that the petitioner had filed another writ petition No. 2480/1994 in respect of a dispute with regard to the question as to which was the true representative union of the employees of Badarpur Thermal Power Station and that writ was pending at the time when this settlement was arrived at. The contention of the petitioner is that the settlement had not been arrived at with true representative union of the employees of respondent No. 3 and it was the petitioner union that was the true representative of the employees. During arguments, it was submitted that when election by secret ballet was held, the petitioner union emerged as a majority union. The present settlement, though has been given a colour as if it has been arrived at under Section 12(3) of Industrial Disputes Act and was binding on all the employees even if they were not party to it, was dehorse the conciliation proceedings and, therefore, was not binding on the petitioner. It is submitted that the respondent No. 3 should have avoided to arrive at settlement because it was still to be decided which of the union was having true representative character and was entitled to enter into the settlement.

5. In the counter affidavit filed by the respondent No. 3, it is stated that the writ petition was not maintainable as it involved disputed questions of facts which can be decided only on the basis of evidence for which there is effective and alternative remedy available under Industrial Disputes Act. It is also stated that the petitioner had not come to court with clean hands and had not disclosed to the court the order passed by this Court per Mr. Justice Mahendra Narain on 19.5.1994 confirming the stay on the contentions of the respondent in suit No. 1925/1993 that respondent cannot be ordered to hold elections for the purpose of determining the majority union and that the recognition of union was not a fundamental right.

5. It was submitted by the respondent No. 3 that the writ petition has become infructuous because the settlement dated 31.5.1995 has already been implemented and benefits under the settlement have been taken by all the workmen therein including the members of the petitioner union. As per the settlement, arrears of wages with effect from 1.1.1992 as a consequence of the wage structure agreed in the settlement dated 31.5.1995 has been received by all the workmen and respondent No. 3 has already distributed an amount of Rs. 3.25 crores among the workmen and was incurring an expenses of Rs. 11.38 lacs every month on revised wages and allowance. The settlement has exhausted itself as new settlements came into force between management and workers union one after another.

6. In the entire writ petition, the petitioner has nowhere stated that the settlement arrived at was not fair, equitable or was against the interest of the employees.

7. I consider that this Court cannot issue directions restraining the respondent No. 3 from implementing the settlement even if the settlement was not to the liking of the petitioner. By the impugned settlement, workmen were going to get certain additional benefits and arrears of pay. It was the option of the workmen to accept or not to accept benefits under the settlement. The workmen were at liberty to decide about availing the benefits of settlement and they did decide to take benefits. Even if the workmen had received the benefits, this would not have prevented the petitioner from raising an industrial dispute. In 1975 SCC L&S 63 The Jhagrakhan Colleiries (P) Ltd. v. Shri G.C. Agarwal, Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Jabalpur and Ors. Supreme Court held that drawing of V.D.A. in accordance with the agreement, cannot be used against the Federation. The plea of implied agreement by acquiescence or conduct such as acceptance of a benefit under an agreement, to which they were not a party, cannot be raised, being outside the purview of the Act.

8. Thus, the implementation of the settlement by the respondent No. 3 could not have prevented the petitioner from raising the industrial dispute before the Industrial Tribunal regarding settlement being unfair.

9. As far as second prayer is concerned, I consider it is well settled law that High Court, in exercise of writ jurisdiction, cannot entertain issues involving disputed question of facts. It is not in dispute that four of the unions of the workers of respondent No. 3 plant had participated in the settlement before the conciliation officer. Only the petitioner had not participated. The petitioner claims that the petitioner was the majority union and its not participating, vitiated the conciliation proceedings arriving at the settlement. Whether the petitioner was a majority union on the day when conciliation proceedings were held and settlement was arrived at, is a disputed question of fact which cannot be decided without recording of evidence. If the petitioner was aggrieved by the settlement arrived at, the petitioner ought to have raised an industrial dispute and the dispute would have been referred to the Tribunal and the Tribunal would have opportunity to record evidence and came to conclusion whether the settlement arrived at was with a majority of the workmen or not. This Court, unless there are strong circumstances, cannot entertain writ petition directly, bypassing the Tribunal.

10. I consider that even otherwise, the writ petition is liable to be dismissed. In Herbertsons Ltd. v. The Workmen of Herbertsons Ltd, Supreme Court held:

When a recognized 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 recognized union, which is expected to protect the legitimate interests of labour, enters into a settlement in the best interests of labour. This would be the normal rule. We cannot altogether rule out exceptional case where there may be allegations of mala fide, fraud or even corruption or other inducements. Nothing of that kind has been suggested against the President of the third respondent in this case. That being the position, prima facie, this is a settlement in the course of collective bargaining and, therefore, is entitled to due weight and consideration.(para 18)

It is not possible to scan the settlement in bits and pieces and hold some part good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained the Court will be slow to hold a settlement as unfair and unjust. The settlement has to be accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust. Even before this Court the third respondent representing admittedly the large majority of the workmen has stood by this settlement and that is a strong factor which it is difficult to ignore. As stated else where in the judgment, we cannot also be oblivious of the fact that all workmen of the company have accepted the settlement. Besides, the period of settlement has since expired and we are informed that the employer and the third respondent are negotiating another settlement with further improvements. These factors, apart from what has been stated above, and the need for industrial peace and harmony when a union backed by a large majority of workmen has accepted a settlement in the course of collective bargaining have impelled us not to interfere with this settlement. (para 27)

11. Since it is not pleaded or shown that the settlement arrived at between the management and other unions was unfair and against the interests of workmen nor it is pleaded or shown that the management has taken benefit of weak bargaining power of the workmen, the court should be loath to unsettle the settlement which has been arrived at between the parties,more so, when the settlement has been reached with the active assistance of conciliation officer. Court should discourage the tendency of raising issues by a union which has not participated in arriving at the settlement, despite having notice. The petitioner, if wanted more time to give its response, was free to send its representative before the conciliation officer at the appointed time and ask for more time. Non appearance of the petitioner before the conciliation officer and merely writing a letter shows that the petitioner was not interested in welfare of the workmen and was more interested in promoting its leadership. The previous settlement had expired in the year 1991 and no new settlement had been arrived at between the management and the workmen after that. It was expedient for the union to cooperate in arriving at a settlement beneficial to the workmen. When settlement was being done before the conciliation officer, all objections could have been raised before the conciliation officer.

12. I consider that there is no force in the writ petition. The writ petition is liable to be dismissed. It is hereby dismissed. No orders as to cost.