O R D E R

The workmen of Hindustan Aeronautics Limited represented by the Hindustan Aeronautics Employees Association-a trade union are before this Court assailing the impugned communication issued by respondent No.3 dated 03.08.2023 annexing notice of change under Section 9A of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the ID Act’ for short) in Form ‘E’ at Annexure-A, the communication issued by respondent No.4 dated 27.12.2023 at Annexure-B and further a writ of mandamus directing the respondent-management to ensure the compliance with the memorandum of settlement dated 14.06.1988.

2. Petitioner herein is referred to as a Trade Union and the respondent as the management for the sake of convenience.

3. Heard Smt. Maitreyi Krishnan, learned counsel for the petitioner and Sri. Pradeep S. Sawkar, learned counsel for the respondents.

4 (I) Learned counsel for the petitioner would urge the following grounds:

i. That the workmen of the respondent-management have vested right for computation of leave encashment by considering 26 days in a month as prescribed under the memorandum of settlement entered between the petitioner- union and the respondent-management and in violation of the same, the notice dated 03.08.2023 by the respondent- management under Section 9A of the ID Act, changing the leave encashment by considering 30 days a month instead of 26 days and the communication dated 27.12.2023 stating the changes/amendments at Annexure-A would come into force with effect from 27.12.2023 is highly impermissible and illegal, more so the communication effecting the amendment is in the interregnum period when the reference is awaited.

ii. That the methodology to calculate vacation leave encashment is governed by the terms of the settlement at Annexure-C entered into between the management and the workman signed on 19.08.1988 under Section 18 (3) read with Section 12 (3) of the ID Act.

iii. The notice issued by the management stating the changes would come into force with effect from 27.12.2023 being an unilateral amendment to the settlement is illegal and without authority.

iv. The dispute was brought to the notice of the Conciliation Officer, however, the conciliation has failed and the matter was referred to the Government for further action.

v. That the respondent-management cannot unilaterally alter the terms of subsisting binding settlement and bring it into effect immediately.

4 (II) Learned counsel would address her arguments to the preliminary objections raised by the respondents regarding the maintainability of the writ petition in the following manner:

i. That the impugned notice/communication dated

27.12.2023 has been issued subsequent to the failure of conciliation and with the knowledge that there is no Presiding Officer at CGIT to hear the matter when referred.

ii. That the impugned orders are entirely without authority/jurisdiction and directly affecting the fundamental rights of the workman and that this Court has authority/jurisdiction to look into the said aspect.

iii. That an alternative remedy does not operate as an absolute bar particularly, when the writ petition has been filed for enforcement of the fundamental right or where there has been violation of principles of natural justice or where the order or the proceedings are wholly without jurisdiction or the vires of an act is challenge.

iv. In the instant petition, it is a pure question of law “as to whether the respondent-management can unilaterally alter the terms of a subsisting binding settlement and that the writ Court has no bar in deciding the matter.”

4 (III) In support of her contention regarding the maintainability of the writ petition under Article 226, the following decisions are placed:

i. M/s. Magadh Sugar and Energy Ltd. vs. State of Bihar1 (M/s. Magadh Sugar & Energy Ltd.)

ii. Union of India (UOI) and Ors vs. Tantia Construction Pvt. Ltd.2 (Tantia Construction Pvt.

Ltd.)

4 (IV) The settlements/awards are binding even after the period unless it