M/S Prakash Industries vs Industrial Tribunal No. 1 & Others
2011 Latest Caselaw 3252 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+              W.P. (Civil) No. 704/1996

%                                               Decided on: 11th July, 2011

M/s Prakash Industries,
10148, Katra Chhajjin Pt.,
Shidi Pura (Opp. Filmistan Cinema),
New Delhi.                                           ..... Petitioner
                          Through: Ms. Asha Jain Madan and Mr. Mukesh
                                    Jain, Advocates.
                   versus

1.     Industrial Tribunal No. 1,
       Government of National Capital Territory of Delhi,
       Tis Hazari Court,
       Delhi.

2.     Its Workmen, C/o General Mazdoor Congress,
       Sher Singh Bhawan,
       Goushala Road, Kishan Ganj,
       Delhi.

3.     Sh. Bhikari Lal,
       C/o General Mazdoor Congress,
       S/o Shri Shiv Sahai,
       R/o Block No. -C,
       H.No. 985, Mangolpur, Delhi.

4.  The Govt. of National Capital Territory of Delhi,
    Through the Secretary (Labour),
    Delhi.                                                  ..... Respondents
                      Through: None.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may            Not Necessary
   be allowed to see the judgment?


WP (C) No. 704/1996                                                      Page 1 of 14
 2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported                Yes
   in the Digest?

MUKTA GUPTA, J.

1. In the present Writ Petition the Petitioner seeks quashing of the

impugned Awards dated 5th December, 1995 of the Industrial Tribunal-I in ID

No. 127/1982 and 7/1985 published on 1st January, 1996.

2. The Petitioner had disputes with its workmen pursuant to which

reference was made to the Industrial Tribunal vide Notification No. F.

24(911)/82-Lab.12638 dated 20th August, 1982. The terms of the reference

were as under: -

―1. Whether the workmen mentioned above have been designated according to the work performed by them and paid accordingly? If, not what directions are necessary in this behalf?

2. Whether the workmen are entitled to enhanced wages, if so, what directions are necessary in this behalf?‖

3. The employees in their claim had alleged that there were around 16

workmen employed with the Petitioner/ management out of which 14 were

from the Union and though they were required to perform the duties of skilled

workmen they were being paid wages of unskilled workmen and were not

given proper designation in accordance with the duties actually performed by

them. The dispute actually confined to 11 workmen and it was alleged that

except one, others are performing the duties of Machine Man and only three

out of them were actually designated as Machine Man whereas the rest were

designated as helpers. It was also alleged that they were not given their due

share in the profits earned by the management and prayed that the designation

to the workman be corrected as Machine Man be paid the arrears of the

difference between the wages of the skilled workers and the helper w.e.f. 1st

March, 1982, the management be directed to give an increment of `100/- per

month to all the workmen and also grant increment @10% of their total wages

every year

4. The management in its Written Statement inter alia took a preliminary

objection that there was a settlement between the parties on 15 th February,

1981 and the same being binding on all the workers, pending this reference

was bad in law and not maintainable. The following issues were framed by

the Tribunal to be decided in this reference:

―i) Whether the reference is bad and not maintainable as alleged in the preliminary objections of the W/S?

ii) Whether Sh. Chattar Singh is not competent to sign the Statement of Claim or to authorize Sh. Aggarwal to pursue this matter?

iii) Whether there is no valid demand in this reference?

iv) As per terms of reference.‖

5. After adducing the evidence and hearing the arguments the Industrial

Tribunal turned down the preliminary objection of non-maintainability and

decided that in view of the resolution, dated 25th January, 1982 Shri Chattar

Singh was competent to sign the statement of claim and authorize Shri R.K.

Aggarwal to pursue the matter. As regards Issue Nos. 3 and 4 it was held that

there was a valid demand and as the terms of the settlement of the year 1981

Exhibit M-2 were fair and reasonable, the workmen who had completed six

months' service as helpers were to be promoted as Assistant Machine Man

and after completion of four years of service as Assistant Machine Man they

were to be promoted as Machine Man. It was, therefore, directed that the

workmen mentioned at Serial Nos. 5 to 11 at page 2 of the statement of claim

be re-designated and were entitled to minimum wages of Assistant Machine

Man/Machine Man payable to them in each year according to the notification

of the Delhi Administration. So far as the workmen at Serial No. 1 to 4 were

concerned they were directed to be continued to be paid the wages of Machine

Man. As regards the claim of workman-Shri Bhikari Lal/ Respondent no.3 is

concerned it was found that he was not able to establish that in fact he was

working as Foreman and was entitled to the pay of Foreman. As far as the

claim of increment of `100/- per month and 10% increase per year were

concerned, the same was declined.

6. Before dealing with the second Award dated 5th December, 1995 in

complaint ID No. 7/1985 it would be appropriate to deal with this Award as

the second award is an offshoot of the present Award.

7. Learned counsel for the Petitioner contends that it is settled law that if a

settlement has been arrived at then the Tribunal cannot pass an Award. In the

present case the first settlement dated 15th June, 1981 was arrived at before the

Conciliation Officer, thus, the reference after the settlement was bad in law.

Thereafter, within four months of the reference, the second settlement dated

2nd December, 1982 was also arrived at which has been duly exhibited as

Exh. M3 and has been noted by the Tribunal being part of the written

statement. However, despite the same the Tribunal has given no finding on

the same and has proceeded to pass the award. Reliance in this regard is

placed on The State of Bihar vs. D.M. Ganguly and others, 1959 SCR 1191,

The Sirsilk Ltd. and others vs. Government of Andhra Pradesh and another,

1964 (2) SCR 448, Kapra Mazdoor Ekta Union vs. Management of M/s Birla

Cotton Spinning and Weaving Mills Ltd. and another, 2005 (3) Scale 218 and

Indian Rare Earths Ltd. and another vs. Pramod Chandra Panigrahi and

others, 2005 (13) SCC 379.

8. Nobody has appeared on behalf of the Respondents for the last several

dates. The record has been perused. The two witnesses who have appeared

for the workmen and whose statements have been recorded that is Ram Das

Yadav and Bhikari Lal have admitted that a settlement dated 15th June, 1981

was entered into between the workmen and the management which was

marked as Exhibit M-2. However as the management did not comply with the

terms of the settlement, that is, the designation of the workmen settled therein

was not implemented, the Respondent No.2 was constrained to seek a

reference. It was further admitted that a second settlement between the

employees represented by Ram Das Yadav was entered into on 2 nd December,

1982 marked as Exhibit M-3. It is admitted that in the settlement there was a

clause for implementation of the settlement dated 15th June, 1981 but the

management did not implement the same. Hence the demand notice was sent

to the management which is Exhibit-WW1/2. At this stage, it would be

relevant to reproduce the settlement Exhibit M-3 dated 2nd December, 1982.

―It was complained on behalf of the workers that all the workers have been removed from work w.e.f. 29.10.82 by the management without any reasons.

The contention of the management is that they have not removed any worker, infact the workers have themselves stopped coming to work.

By mutual talks the following settlement has been arrived at: -

1. The management will take back on original service all the workers accept two workers i.e. Sh. Bhikari Lal and Sh. Dev Raj. If during this period any action has been taken against any other worker, the management will recall the same.

2. All the workers have assured that they will do their work with sincerity and honesty and that the settlement dated 15.6.81 will be followed by both the parties.

3. Shi Bhikhari Lal and Sh. Dev Raj will stand suspended w.e.f. 2.12.82.

4. After rejoining the workers will not demand the wages etc. for the period from 29.10.82 to 1.12.82.

5. The management will give Rs. 100/- per worker as advance which will be deducted in two installments.‖

9. The management witness, who appeared in the witness box has

categorically stated not only about these two settlements but the settlement

with the workman dated 1st March, 1984 which acknowledges that there is no

surviving dispute. The management has also produced on record along with

the affidavit a document showing the redesignation of the workmen as under.

SERIAL      NAME            DESIGNATION      WORKERS      DATE   OF      DESIGNATION
NO.                         AS ON BEFORE     WHO          APPOINTME      AFTER
                            SETTLEMENT       HAVE         NT IN THE      15.6.1981
                            DATED 15.6.81    LEFT         INDUSTRY
1.          Bhikari Lal     Machineman       ___          1968           Machineman

2.          Omparkash       Machineman       ___          3.7.1975       Machineman

3.          Radhey Shyam    Machineman       LEFT ON ____                Machineman
                                             10.2.92
4.          Khushiram       Machineman       ____    11.6.1976           Machineman





 5.           Achhe Lal      Helper            ___          1.3.1980       Assistant
                                                                          Machineman
                                                                          (15.6.1981)
                                                                          Machineman
                                                                          (July, 1985)
6.           Horam Singh    Helper            LEFT ON
                                              30.8.84
7.           Dev Raj        Helper            LEFT

8.           Puran Lal      Helper            ____         1.3.1980       Assistant
                                                                          Machineman
                                                                          (15.6.1981)
                                                                          Machineman
                                                                          (July, 1985)
9.           Shambhu        Helper            LEFT ON
             Prasad                           23.7.85
10.          Udhisther      Helper            ____    1.7.1982            Assistant
             Prasad                                                       Machineman
                                                                          (1.1.1983)
11.          Ramesh         Helper            LEFT ON
                                              28.7.84

10. From the award it is clear that the Industrial Tribunal has not taken into

consideration the second settlement. The second settlement dated 2nd

December, 1982 clearly stated that the implementation of the settlement dated

15th June, 1981 will be followed but Shri Bikhari Lal and Shri Devraj will

stand suspended. By the impugned Award dated 15th February, 1981 in ID

127/1982 the only direction given by the Tribunal is with regard to re-

designation. From the documents enclosed, which have not been denied or

disputed, it is evident that this re-designation has been done. This was also a

part of the settlement. Hence nothing survives in this reference.

11. The issue whether in view of the settlement the Tribunal could have

passed the Award would have bearing on the second Award and which is

being dealt hereinafter.

12. The Award dated 5th December, 1995 in complaint ID No. 7/1985

relates only to the dispute of Shri Bhikari Lal who is Respondent No. 3 in the

present Writ Petition. As adumbrated above and in view of the settlement

arrived on 2nd December, 1982 Shri Bhikari Lal was suspended and he was

getting his suspension allowance. This settlement has been admitted by Shri

Bhikari Lal in his evidence. Subsequent to this, on suspension and inquiry he

was terminated and a industrial dispute was raised on which a reference was

sent to the Tribunal on the following terms of reference:

―1. Whether the workman mentioned above have been designated according to work performed by them and paid accordingly. If, not what directions are necessary in this behalf?

2. Whether the workmen are entitled to enhance wages, if so, what directions are necessary in this behalf?‖

13. In the claim Shri Bhikari Lal has stated that since he actively

participated in the legitimate trade union activities, the management

terminated his services vide order dated 3rd May, 1983 without seeking an

approval of the Tribunal. The prayer has been made for reinstatement with

full back wages and continuity of service with other ancillary benefits.

14. The plea of the management before the Tribunal was that the reference

pending was not a valid reference and the allegations as set out were denied.

In support of his case the workman examined himself as WW1 while, the

management did not produce any evidence, though some documents were

filed by the parties. The Tribunal framed the following issues for its

determination:

―i) Whether the termination is in violation of Section 33 of the I.D. Act?

ii) What relief is workman entitled?‖

15. After adducing the evidence and hearing both the parties, the Tribunal

held that the termination of the service of the workman Shri Bhikari Lal was

clearly in violation of the provisions of Section 33 of the I.D. Act. It was

further held that since he was a technical hand it was not difficult for him to

seek an alternative job and he was awarded 60% back wages minus

suspension allowance from 3rd May, 1983 to the date of the Award and from

that date onwards full wages and in case the amount was not paid within two

months of the Award becoming enforceable, he would be entitled to claim

12% interest on the said amount.

16. In the present writ petition the Petitioner contested this Award also

saying that in view of the settlement arrived at, no Award could have been

published and secondly, that an Application under Section 17B was filed after

nine years of the filing of the petition and one year before the age of

superannuation of Respondent No. 3. It was also stated that the Respondent

No. 3 is running a factory and is thus neither entitled to back wages nor

reinstatement etc.

17. Having heard learned counsel for the Petitioner and perused the record,

the contention of learned counsel for the Petitioner that in view of the

settlement arrived at no Award could have been passed in terms of Section 18

of the ID Act is bound to be upheld. As regards Respondent No. 3, Shri

Bhikari Lal is concerned, it may be noted that in the second settlement dated

2nd December, 1982, it was stated that Bhikari Lal and Dev Raj will stand

suspended with effect from 2nd December, 1982. This settlement is signed by

Bhikari Lal. Moreover, as per Section 18 of the I.D. Act, in case of a

settlement no Award can be passed by the Court concerned and even if it is

passed, before the publication the government has to stay the notification of

the award and give effect to the compromise/settlement as held by the

Hon'ble Supreme Court in The Sirsilk Ltd. (supra).

18. Section 33 of the I.D. Act states :-

33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.-(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall--

(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],--

(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman:

Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.

(3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute--

(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or

(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman,

save with the express permission in writing of the authority before which the proceeding is pending.

Explanation.--For the purposes of this sub-section, a "protected workman", in relation to an establishment, means a workman who, being [a member of the executive or other office bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.

(4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of sub- section (3) shall be one per cent. of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.

(5) Where an employer makes an application to a conciliation officer, Board, [an arbitrator, a labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass,

[within a period of three months from the date of receipt of such application], such order in relation thereto as it deems fit:]

[Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit:

Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.]‖

19. In view of the settlements arrived at and the law laid down by the

Hon'ble Supreme Court that once a settlement is arrived at even if it is not

stated as regards certain disputes, it is deemed that all disputes as on date are

settled. In view of the clear mandate of Section 33 of I.D. Act, I find it

appropriate to uphold the contention of the petitioner that the reference was

bad in law.

20. The Writ Petition is disposed of accordingly setting aside the impugned

awards.

(MUKTA GUPTA) JUDGE

JULY 11, 2011 vn