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2001 Supreme(Guj) 577
Gujarat High Court
Judgename :D.H.WAGHELA
INSAFI KAMDAR MANDAL - Appellant
Versus
ASSISTANT COMMISSIONER OF LABOUR and CONSILIATION OFFICER - Respondent
S.C.A. 10318 of 1999
Decided On : 08/09/2001
Headnote:(a) Constitution of India, 1950 - Arts. 226 and 227 - Non-admission of trade dispute - Writ or direction sought for the Government to refer the dispute under Industrial Disputes Act - Workman resigned under terms of settlement of dispute and received payment by cheque - Workmans signature obtained on blank-sheet of paper for resuming duty, attached to the terms of settlement with mala fide - Held, in facts and circumstances, demand and dispute raised are frivolous and opposed to the provisions of Act - Government or Conciliation Officer not obliged to refer the dispute - Writ of mandamus or direction cannot be issued.
If the authority has, after application of mind to the relevant and material facts, found the demand and dispute to be unreasonable, illegal and opposed to the provisions and policy of the Act, the same cannot be faulted.
[Para 9]
(b) Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Sec. 2(p) - Settlement of industrial dispute - Genuineness and validity of - Held, industrial dispute settled by an accepted agreement would be opposed to the provisions of Act and inconsistent with the agreement to allow a fresh round of litigation.
In the scheme of the industrial law, a settlement arrived at by the agreement of the parties is placed on the highest pedestal and considered to be an ideal resolution of industrial dispute as it is evolved by the parties themselves and no litigation is supposed to ensue. Therefore, in a clear case of settlement of an industrial dispute by an accepted agreement, it would be opposed to the provisions of the Act and inconsistent with the agreement to allow a fresh round of litigation.
[Para 9]
(c) Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Secs. (2k) and 10(1) - Reference of industrial dispute - Held, even after satisfaction of the condition, making of a reference or holding of conciliation proceeding is in the discretion of the authority - Discretion only extends to the deciding of question whether dispute is existing or apprehended - Whether required to be referred or not.
A prima facie examination of the merits of the dispute is not impermissible and in case the dispute is found to be patently frivolous or clearly belated or if its reference is in expedient on consideration or other relevant and material facts, the Government may refuse to make a reference subject to compliance with the condition of recording and communicating to the parties concerned the reasons.
[Para 8]
(d) Trade Union Act, 1926 (Central Act 16 of 1926) - Sec. 4 - Raising of industrial dispute - Held, in presence of a representative Labour Union, the role of Workers Union is undesired.
If every trade union having few members is to go on raising a dispute again and again, the very purpose of settlement is defeated. If there are number of trade unions registered under the Trade Unions Act, 1926 not entitled to be registered as representative unions and they raise disputes, industrial peace would be a far cry. (National Engineering Industries Ltd. vs. State of Rajasthan, AIR 2000 SC 469).
[Para 6.1]
( 1 ) THE petitioner, a trade union, has filed this petition under Articles 226 and 227 of the Constitution of India with a prayer to set aside the order and decision dated 3. 11. 1999 of Assistant Commissioner of Labour, Nadiad whereby the dispute raised by the petitioner is not admitted in conciliation. The petitioner has also sought a direction directing the government to refer the dispute under the Industrial Disputes Act, 1947 (hereinafter referred to, for short, as "the Act".)
( 2 ) ACCORDING to the petition, the workmen concerned had raised demands and disputes regarding service conditions before the respondent no. 2- employer- company through another union. The dispute took a bitter turn resulting into go-slow and threats of strike and lock out. It is alleged that the employer, with the consent and connivance of the other union representing the workmen at that time, prepared a settlement and, without the terms and conditions of such settlement being explained to the workmen, obtained the signatures of the workmen on a blank sheet of paper which was afterwards attached to the settlement. The workmen were, accoding to the petition, given to understand that if they signed such papers, they would be allowed to resume duty. It is also alleged that the settlement was recorded by the Government Labour Officer without examining whether the settlement was just, legal, reasonable and valid. Thus, the allegations of mala fide and complicity of employer, the leaders of the other trade unions and the Government Labour Officer are made regarding the settlement in terms of which the workmen concerned have admittedly resigned and received payments by cheques. It is also alleged that as against the impression conveyed to the workmen that the industry was being closed, in reality, immediately after the settlement under which the workmen concerned had resigned from their services, the employer had restarted the manufacturing process through contractors and even employed some of the old hands. The settlement, purporting to be a "settlement" under Section 2 (p) of the Act, was prepared on 21. 9. 1996 and signatures of the workmen on a blank paper subsequently annexed to it were obtained on 5. 10. 1996, according to the petition. 2. 1 from amongst the workmen concerned in the dispute as above, 29 workmen approached this court by way of Special Civil Application No. 4184/97 which was disposed of on 30. 3. 1998 with the order as under:-" It will be open for the petitioner to challenge the settlement before the appropriate forum under the Industrial Disputes Act. In view of this, nothing further is required to be done in the matter as the petitioner has alternative remedy. Hence, rejected. Notice discharged. "2. 2 before that, by a legal notice dated 20. 11. 1996, the workmen had conveyed the grievance that the settlement dated 21. 9. 1996 was based on misrepresentation and it was illegal and by way of betrayal and unfair labour practice. The notice also alleged that the termination of service effected under the settlement was in violation of express mandatory provisions of the Act as also that the payments made to the workmen did not cover certain legal dues. On that basis, the demands for reinstatement with full back wages was placed before the management which did not even care to reply the notice according to the petition.
( 3 ) THE settlement in question stated that, in the back ground of recurrent losses incurred by the company, it was proposed to close or sell away the industry and in such circumstances, a scheme for retirement of all the workmen was devised under which the workmen were promised payments against which they would submit their resignations and would stand relieved w. e. f. 30. 10. 96. The major part of the payment, i. e. Rs. 60000. 00 to each workman, was to be made by cheques and resignations were to take effect only after about a month and after realization of the cheques. The settlement was signed by th
