Santosh Kumar vs Uoi And Ors `
2011 Latest Caselaw 2738 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 23rd May, 2011

+                  W.P.(C) 3484/2011 & CM No.7282/2011 (for stay)

%        SANTOSH KUMAR                                         ..... Petitioner
                    Through:              Mr. Atul T.N., Advocate

                                     Versus
         UOI AND ORS                                      ..... Respondents
                              Through:    Mr. Anuj Aggarwal, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     No

2.       To be referred to the reporter or not?              No

3.       Whether the judgment should be reported             No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. At the instance of the Container Corporation of India Employees

Union (which has not been made a party to the present petition), the

following reference came to be made under Section 10 of the Industrial

Disputes Act, 1947:

"Whether the action of the management of Container Corporation of India Ltd., Ashoka Road, New Delhi is not giving to its employees any incentives for family planning for promoting small family norms of the Govt. is justified? If not to what relief and benefits the employees are entitled to?"

2. While the said reference was pending and the matter was listed next

before the Industrial Adjudicator on 16th March, 2006 for cross

examination of the workmen, an application dated 3 rd January, 2006 came

to be filed before the Industrial Adjudicator on behalf of the Union

aforesaid. In the said application it was inter alia stated that the Union

during the pendency of the proceedings before the Industrial Adjudicator

had come to know that a Scheme viz. "Policy on Grant of Incentives for

Adopting Small Family Norms" was in existence in the respondent No.2

Container Corporation of India Ltd. (CCIL); it was further stated that the

Union was satisfied about the existence of the said Scheme and that the

employees / workmen of the CCIL were availing of the benefits under the

said Scheme; the Union expressed its acceptability of the said Scheme and

applied for making of an award holding that in view of the Scheme

prevalent in the CCIL, no further relief was called for.

3. On the aforesaid application of the Union, statement was recorded

by the Industrial Adjudicator on 4th January, 2006 of Mr. Vinay Kumar

Chaudhary, President of the Union and the Industrial Adjudicator decided

the reference in accordance with the said Policy / Scheme in the CCIL of

which existence was admitted by the Union.

4. An application was filed by one Mr. Suresh Kumar Ranga before the

Industrial Adjudicator pleading that he was the General Secretary of the

Union and had been pursuing the dispute aforesaid before the Industrial

Adjudicator and while the matter was posted for 16 th March, 2006 as

aforesaid, it was mischievously got decided before the said date and

seeking recall of the order making the award aforesaid.

5. While the said application of Mr. Suresh Kumar Ranga was pending

consideration, the petitioner herein claiming to be one of the workmen of

CCIL and further claiming that the reference of dispute aforesaid was

made on espousal by him and the other workmen, also made an application

before the Industrial Adjudicator for impleadment as a party in the

proceedings before the Industrial Adjudicator.

6. It is the case of the petitioner that inspite of repeated opportunities,

no reply was filed to his said application for impleadment. The said

application of the petitioner for impleadment was dismissed in default and

for non prosecution on 18th April, 2011.

7. The Industrial Adjudicator vide detailed order dated 16 th May, 2011

dismissed the application of Mr. Suresh Kumar Ranga aforesaid. In the

said order, it is recorded that Mr. Suresh Kumar Ranga had ceased to be

the General Secretary of the Union and in the elections of the Union held

in April, 2005 one Mr. Rajeev Kumar was elected as the General

Secretary; Mr. Vinay Kumar Choudhary on whose application the consent

award aforesaid had come to be made, was the President of the Union

when Mr. Suresh Kumar Ranga was the General Secretary and continued

as the president of the Union even when Mr. Rajeev Kumar had come in

place of Mr. Suresh Kumar Ranga as the General Secretary. The Industrial

Adjudicator has further recorded that the said Mr. Suresh Kumar Ranga

had filed a Civil Suit to restrain the said Mr. Rajeev Kumar and Sh. Vinay

Kumar Choudhary from functioning as the office bearers of the Union and

the application for interim relief in the said suit was dismissed and the

appeal preferred thereagainst was also dismissed. It was yet further

recorded that the services of Mr. Suresh Kumar Ranga had also been

terminated by CCIL. The Industrial Adjudicator accordingly held that Mr.

Suresh Kumar Ranga had no right to apply for recall of the order/consent

award.

8. The petitioner also moved an application for recall of the order by

which his application was dismissed in default. The Industrial Adjudicator

vide order dated 16th May, 2011 impugned in this petition has held that

once the application of Mr. Suresh Kumar Ranga and seeking impleadment

in which the petitioner had applied, stood dismissed on merit, no purpose

would be served in reviving the application of the petitioner for

impleadment.

9. The petitioner now claims that in fact he is the affected workman;

that Mr. Vinay Kumar Choudhary had no right; that it is he who is

suffering; that CCIL stage-managed the consent award to obviate recourse

to Section 33 of the I.D. Act since it was contemplating action against the

workmen. Reliance in this regard is placed on (i) R. Bharathidasan Vs.

The Presiding Officer, Industrial Tribunal MANU/TN/2214/2009; (ii)

K.K. Rattan Vs. Presiding Officer, Labour Court (1994) II LLJ 378 P&H;

and (iii) Usha Spinning & Weaving Mills (Ex-Workmen) Ass. Vs. Usha

India Ltd. MANU/DE/0299/1999 to contend that without the workmen

being signatory to the settlement, there could be no settlement.

10. No error is found in the order of the Industrial Adjudicator. The

petitioner had not applied for recall of the consent award. The petitioner

had merely applied for impleadment in the proceedings initiated by Mr.

Suresh Kumar Ranga for recall of the consent award. The said

proceedings initiated by Mr. Suresh Kumar Ranga stand dismissed on

merits. Once the proceedings in which impleadment was sought stood

concluded, the question of reviving the application of the petitioner for

impleadment did not arise.

11. The reference was made at the instance of the Union and it stands

established that the award has been made with the consent of the Union.

The present appears to be a case of inter se rivalry between the Union

members. Once the dispute has been raised by and referred at the instance

of the Union, if the workmen are dissatisfied with the actions of the office

bearers of the Union, their remedy is through the democratic process of the

Union and they cannot individually agitate the matter and cannot challenge

the award of the Industrial Adjudicator in accordance with the consent of

the Union and especially without, as aforesaid, impleading the Union even

as a party to the present petition.

12. I have enquired from the counsel for the petitioner whether Mr.

Suresh Kumar Ranga has agitated the matter further. The answer is in the

negative. Now, the counsel for the petitioner states that he is going to file

the challenge on behalf of Mr. Suresh Kumar Ranga also. It is quite clear

that the petitioner is acting in conspiracy with and at the behest of Mr.

Suresh Kumar Ranga and not for the benefit of workmen in general.

13. The judgments cited are not found applicable. The Division Bench

of the Madras High Court in R. Bharathidasan (supra) held that there is no

complete bar on an individual workman to pursue the dispute, if the

settlement arrived at by the Union is tainted with mala fide, fraud or

corruption. However such is not the case here. It was Mr. Suresh Kumar

Ranga who was seeking revocation of the consent award. The petitioner

was merely seeking impleadment in those proceedings. No case of mala

fide, fraud or corruption is made out. A lone workman, without agitating

the matter in the Union, cannot be allowed to so agitate the matter. If the

same were to be permitted on asking, the employers will hesitate to deal

with Unions for fear of the Union being not entitled to enter into

agreements/settlements. It is not shown that in the last five years since the

consent award, any other workman has expressed dissatisfaction therewith.

The Division Bench of the Madras High Court itself has noticed several

judgments laying down that when the Union has raised the dispute, it is the

Union alone which is empowered and entitled to pursue the same and/or to

enter into settlement on behalf of all the workmen and the workmen would

be deemed to be parties to the settlement and not entitled to go behind the

settlement. The Division Bench of Punjab and Haryana High Court in

K.K. Rattan (supra) was concerned only with the procedure to be followed

upon the workmen absenting and not with the controversy as has arisen.

As far as the judgment of the Division Bench of this Court in Usha

Spinning (supra) is concerned, it was faced with the situation where the

workmen were not members of the Union which had entered into the

settlement and it was for this reason that they were held to be not bound by

the settlement.

14. There is no merit in the petition. The same is dismissed. No order as

to costs.

CM No.7283/2011 (for exemption)

Allowed, subject to just exceptions.

RAJIV SAHAI ENDLAW (JUDGE) MAY 23, 2011 „gsr‟