Gujarat High Court
Gujarat Industries Power Company Ltd vs Ashwin Bhagwandas Panchal Or His ... on 30 July, 2024
NEUTRAL CITATION
C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5707 of 2014
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 5707 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 5712 of 2014
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 5712 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 19387 of 2015
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 19387 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 19388 of 2015
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 19388 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT INDUSTRIES POWER COMPANY LTD & ANR.
Versus
ASHWIN BHAGWANDAS PANCHAL OR HIS SUCCESSOR IN OFFICE &
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NEUTRAL CITATION
C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024
undefined
ORS.
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Appearance in SCAs:
SHRI KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR ANUJ K
TRIVEDI(6251) WITH MR VAIBHAV GOSHWAMI for the Petitioner(s) No. 1,2
MR AJAY R MEHTA(453) for the Respondent(s) No. 16,18,25,30,32,33,8,9
MR BHUSHAN B OZA(1072) for the Respondent(s) No. 35
MR PARITOSH CALLA(2972) for the Respondent(s) No. 1
MR SACHIN D VASAVADA(3342) for the Respondent(s) No. 11,12,20,21
MR. RISHIN R PATEL(7222) for the Respondent(s) No. 28,6
MR.VARUN K.PATEL(3802) for the Respondent(s) No.
13,14,15,17,23,24,26,27,31
MS DHARMISHTA RAVAL(707) for the Respondent(s) No. 19,22,29,34
RULE SERVED for the Respondent(s) No. 4
RULE UNSERVED for the Respondent(s) No. 10,2,3,5,7
Appearance in CAs:
MS. KRUTI M SHAH(2428) for the PETITIONER(s) No.
1,10,11,2,3,4,5,6,7,8,9
MR AJAY R MEHTA(453) for the RESPONDENT(s) No.
10,11,18,20,27,32,34,35
MR ANUJ K TRIVEDI(6251) for the RESPONDENT(s) No. 2
MR BHUSHAN B OZA(1072) for the RESPONDENT(s) No. 37
MR PARITOSH CALLA(2972) for the RESPONDENT(s) No. 3
MR SACHIN D VASAVADA(3342) for the RESPONDENT(s) No. 13,14,22,23
MR. RISHIN R PATEL(7222) for the RESPONDENT(s) No. 30,8
MR.VARUN K.PATEL(3802) for the RESPONDENT(s) No.
15,16,17,19,25,26,28,29,33
MS DHARMISHTA RAVAL(707) for the RESPONDENT(s) No. 21,24,31,36
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 30/07/2024
COMMON ORAL JUDGMENT
1. The present Special Civil Applications as well as all the Civil Applications (For Joining Party) in the Special Civil Applications respectively are filed challenging two judgment Page 2 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined and awards dated 07.02.2014 (published on 01.03.2014 and received by the petitioners on 03.03.2014) passed by the learned Industrial Tribunal, Surat (hereinafter referred to as "the Tribunal"), in Reference (IT) Nos.72 of 2001 and 103 of 2001. Since the impugned awards under challenge are common dated 07.02.2014, all the writ petitions and the civil applications are heard analogously and are being disposed of by this common judgment and order.
2. The captioned writ petition being SCA No.5707 of 2014 is filed by the Petitioner Gujarat Industries Power Company Ltd. (hereinafter referred to as 'Company'), challenging the Award dated 07.02.2024 rendered by the learned Industrial Tribunal, Surat in Ref. (IT) No.72 of 2001 in favour of Bijli Mazdoor Panchayat i.e. the Respondent Union, concerning its 418 members being the Contract Workmen employed by the Respondent Contractors, whereas the captioned Civil Application No.01 of 2023 filed in the said writ petition on behalf of 11 Contract Workmen from among the aforesaid 418 Contract Workmen, seeking permission to be joined as party Respondents in their personal capacity in the said writ petition being SCA No.5707 of 2014.
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NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined 2.1 Similarly, the writ petition being SCA No.5712 of 2014 has been filed by the Petitioner Company, challenging another Award of the same date i.e. 07.02.2024 rendered by the learned Industrial Tribunal, Surat in similar case of Ref. (IT) No.103 of 2001, in favour of the abovenamed Respondent Union, concerning its 125 members being the Contract Workmen employed by the Respondent Contractors, whereas the captioned Civil Application No.01 of 2023 filed in the said SCA No.5712 of 2014 on behalf of 43 Contract Workmen from among the aforesaid 125 Contract Workmen, who also seeking permission to be joined as party Respondents in their personal capacity in the aforesaid writ petition being SCA No.5712 of 2014.
2.3 Apart from what is mentioned above, the Union has also filed two writ petitions being SCA Nos.19387 and 19388 of 2015, challenging the aforesaid two Awards dated 07.02.2014, to the extent to which the said Union was denied the benefit of regularization for its members - Contract Workmen from past date.
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3. For the sake of convenience, the Special Civil Application No.5707 of 2014 is treated as a lead matter. The brief facts of the case of the Special Civil Application No. 5707 of 2014 in nutshell are as under :
3.1 The petitioner Company is engaged in the activity of generation of electricity and its Registered Office and power plant are at P.O Petrochemical, Vadodara. The petitioner Company is promoted by the Gujarat Urja Vikas Nigam Limited (erstwhile Gujarat Electricity Board), Gujarat State Fertilizers & Chemicals Limited (GSFC), Gujarat Alkalies & Chemicals Limited (GACL) and Petro Fils Co-operatives Limited. As far as the present dispute is concerned, the same pertains to the petitioner Company's power plant situated at Nani Naroli, Tal.
Mangrol, Dist. Surat. The said power plant was established in the year 2000 with a capacity of 250 MW and was required to utilize lignite, which was to be made available from the captive mines close to Nani Naroli owned by the petitioner Company. 3.2 The petitioner Company had in the year 1995 procured its registration by way of certificate of registration No.213/95 dated 05.06.1995 from the concerned authority under the Page 5 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined Contract Labour Act. Subsequently, the petitioner Company entered into contract agreements from time to time with the respondent contractors started as early as the year 1999-2000, for supply of contract workmen to carry on certain activities in the unit/establishment of the petitioner Company, which arose intermittently and/or temporarily during the course of the petitioner Company's main activity, i.e. generation of electricity. The said contract agreement was entered into between the petitioner Company and the respondent contractors for various purpose inter-alia for the following purpose:
(i) Annual rate contract for housekeeping of plant,
(ii) Annual rate contract for firefighting services,
(iii) Annual Maintenance Contract for boiler system,
(iv) Contract for maintenance of ash handling system,
(v) Contract for maintenance of lignite handling system.
(vi) Annual Maintenance Contract of control and instrumentation,
(vii) Annual Maintenance Contract for air-conditioning and ventilation,
(viii) Annual Maintenance Contract for electrical maintenance,
(ix) Annual rate contract for Material handling,
(x) Annual Maintenance Contract for balance of plant equipment, Page 6 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined
(xi) Annual rate contract for housekeeping of colony.
(xii) Annual rate contract for Bed Ash Disposal,
(xiii) Annual rate contract for Housekeeping of lignite handling system.
3.3 The said contract(s) have been extended from time to time or fresh tenders came to be invited, which on scrutiny, came to be awarded to the successful contractors on L1 basis with whom, the petitioner Company entered into agreements subsequently. Over a period of time, several contractors were working in the petitioner Company by way of several contract agreements. The aforesaid activities were carried out diversely by the respondent contractors engaged by the petitioner Company from time to time and the work which was being carried by the said workmen engaged by the contractors was more or less in the nature of work as stated hereinabove, which were neither incidental to nor necessary for the purpose of the main activity of the petitioner Company i.e. generation of electricity and does not require whole time workmen to carry out such odd activities, which are even otherwise irregular and temporary in nature. For the said purpose, the respondent contractors were paid lump sum amount per month in lieu of its services of providing contract workmen. It Page 7 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined is the say of the petitioner Company that as far as the respondent contractors are concerned, at all times, the said respondent contractors were required to have valid licenses under the Contract Labour Act as due compliance of the provision of the work order / contract agreement / Lol. 3.4 It is the say of the petitioner Company that the responsibility of engaging and employing contract workmen as well as of ensuring payment of wages including all allowances, bonus, P F., workmen compensation and such other obligations under the various labour laws was that of the respondent contractors and there was no employer-employee relationship between the contract workmen i.e. the workmen employed by the contractors and the petitioner Company which is evident from the fact that:
(i) The workmen were employed by the contractors and for all the purposes, were the employees of the contractors and not the petitioner company. The petitioner company had engaged the contractors for carrying out the activities as mentioned in the contract agreements.
(ii) The petitioner company all throughout (from the Page 8 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined establishment of the plant) has been holding a valid license/registration being Registration No 213/95 dated 3.6.1995 under the provisions of the Contact Labour Act.
(iii) The contractors engaged by the petitioner company, all throughout the operation of their contract agreements, were having valid licences issued by the authority under the provisions of the Contract Labour Act for carrying out the work of contract labour in the petitioner company.
(iv) The contractors were responsible for the purpose of making payment of the wages to their workmen who were engaged to work in the petitioner company. The same is evident from the wage payment register placed by the respondent contractors before the respondent no.1 and the said wage payment registers are forming part of the record of the respondent no.1. For the sake of convenience, specimen copy of the wage register of one of the two workmen who were witnesses of the respondent union and were cross examined by the petitioner as well as the respondent contractors. The wage register of the workmen who are part of the reference (and have been given the benefit by way of the impugned award) are not being placed on record so as not to make the record bulky However, the petitioner craves leave to refer to and rely upon the same as and when necessary.
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(v) That the respondent contractors were responsible for the purpose of deducting Provident Fund from the salaries/ wages of the workmen and to submit the same with the Provident Fund Authorities under the provisions of the Provident Fund and Miscellaneous Provisions Act, 1952 and for the said purpose, the contractors were also registered under the provisions of Provident Fund and Miscellaneous Provisions Act, 1952.
(vi) The contractors were also paying bonus as well as leave encashment to the respondent workmen engaged by them to work in the petitioner company.
(vii) The contractors were responsible for the purpose of meeting with the requirements of the workmen engaged by them which included issuing leave to the said contract workmen as and when the contract workmen desired so.
(viii) The contractors were also undertaking steps to provide uniform, personal protective equipment like safety helmets, safety shoes, ear plugs, goggles, safety belts, etc.
(ix) The contractors, being the employers of the contract workmen, were required to undertake disciplinary action or other steps as and when required, in case the workmen indulged in act of misconduct or dereliction of duty, which also included dismissal from service or reprimand.
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(x) That for all purposes, the contractors were exercising direct overall supervision and control over the workmen engaged by them on behalf of the petitioner company for carrying out the activities at the plant and it was the contractors who were sharing a direct employer- employee relationship with their workmen.
(xi) Form No. 13 which is a mandatory requirement under the Contact Labour Act is maintained by the respondent contractors for their contract workmen Annexed hereto and marked as ANNEXURE-H Is the specimen copy of the form No 13 of the some of the contractor's workmen along with the details of the form no. 13 of the other contractors.
(xii) I card register is maintained by the respondent contractors which is also evident from the document forming part of the respondent no. 1.
(xiii) The 2 Workmen of the respondent contractors who were witnesses of the respondent union had their own volition, submitted copies of Provident Fund Slips/ID Cards/Wages Slips which if perused would also justify that the fact that the workmen were in fact acting as per the instructions of the contractors and that for all purposes were sharing a direct employer-employee relationship with the respondent contractors.
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(xiv) That all throughout, the petitioner company on completion of the contract of a particular contractor at regular interval or as per administrative exigency, kept on issuing the advertisement for inviting tender for the work to be carried out in the petitioner company. The offers of the bidders/participants were considered and the lowest offer out of the bids, were considered and the said party was awarded the contract to carry out the activities in the petitioner company.
3.5 In this regard, the respondent union, which claims to be the representative union of the contract workmen of the respondent contractors, raised an industrial dispute before the Conciliation Officer which on failure, came to be referred to the Industrial Tribunal vide an order dated 26.11.2001 for adjudication under the provisions of the said Act. The said industrial dispute came to be registered as Reference (IT) No.103/2001 before the respondent No. 1.
3.6 That, the respondent union filed Statement of Claim before the respondent No. 1 raising various contentions including the contention to the effect that the contract workmen were executing activities of permanent and regular nature directly related to production and also that the Page 12 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined company was adopting unfair labour practice by not extending the benefits given to the permanent employees of the petitioner company. Along with the said statement of claim, the respondent union also preferred an application seeking interim relief praying for appropriate orders directing the company (a) not to change the service conditions of the workmen in any manner including by way of termination, discharge, dismissal, retrenchment, etc. during the pendency of the reference, without prior permission of the respondent No. 1 Tribunal, (b) to grant any other relief as deemed fit That the respondent No 1 on 16.8.2001, granted an order of status quo in respect of the service conditions of the concerned workmen till 30.8.2001 which thereafter came to be extended from time to time. That thereafter the order dated 30.8.2001 came to be vacated and the same came to be challenged before this Hon'ble Court vide by way of a writ petition. 3.7 That, the petitioner company filed written statement and raised number of legal objections regarding maintainability of the reference and demands raised therein. It also contested the claim made by the respondent union on merits. The Contractors also filed their respective written statements Page 13 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined contesting the claims of the respondent union on merits. 3.8 It is the say of the petitioner that, before proceeding further, it is worthwhile to note that as per the judgment of the Hon'ble Supreme Court in the case of the Gujarat Electricity Board, Ukai vs. Hind Majdoor Sabha, when an industrial dispute is raised, the Industrial Adjudicator has to decide whether the contract is sham or genuine and it is only if the Adjudicator comes to the conclusion that the contract is sham, that he will have jurisdiction to adjudicate upon the Industrial Dispute since otherwise, he is supposed to refer the dispute to the appropriate Government for abolition of contract labour under section 10 of the Contract Labour Act and keep the dispute pending. Despite the aforesaid well-settled legal position, the respondent No. 1, instead of determining in the first instance as to whether the contract in question is genuine or not, proceeded with the adjudication of the dispute and required all the parties i.e. the petitioner company, the respondent contractors as well as respondent Union to lead evidence, documentary as well as oral.
3.9 It is the say of the petitioner that in the interregnum, Page 14 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined pursuant to the hearing to the respondent no. 1, an order dated 21.11.2002 came to be passed below Exh 5 in the present Reference inter-alia rejecting the interim relief of protection of service condition of the concerned workers involved in the Reference. The said order dated 21.11.2002 came to be challenged by the respondent union before this Hon'ble Court by way of Special Civil Application No.837 of 2003 and this Court was pleased to pass order dated 31.1.2003 granting ad-interim relief in terms of para 6B thereof in effect staying the execution, operation and implementation of the order dated 21.11.2002. Subsequently, this Court vide order dated 6.5.2011 directed the respondent no. 1 to decide / adjudicate the Reference (including Reference (IT) No.72/2001) as early as possible within a period of one year after giving reasonable opportunity of hearing to all respected parties. However, the interim relief granted on 31.1.2003 was to continue till the Reference was finally decided by the respondent no. 1. Thereafter, an application was preferred being MCA No. 1638 of 2012 in SCA No. 837 of 2003 praying for extension of time for deciding / adjudicating upon Reference (IT) No 103 of 2001 and the same came to be granted vide order dated 25.7.2012 granting extension of Page 15 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined another six months from the receipt of the copy of the order dated 25.7.2012. Since the time period was getting over and further time was required to adjudicate upon the reference, Misc. Civil Application No. 146 of 2013 was preferred in SCA No.837 of 2003 praying for extension of time which came to be granted and time was extended for another one year vide order dated 23.1.2013.
3.10 Subsequently, the oral evidence of the employees came to be recorded. In all, 2 witnesses came to be examined on behalf of the respondent Union who were also cross examined and their deposition in chief and cross examination was almost similar. The petitioner also examined one of its employees as its witness who was also crossed examined by the union. The contractors also examined their witness who were also subsequently cross examined by the union. This apart, documentary evidence was also produced and relied upon by the respondent Union during the course of hearing and the petitioner company also contested the claims of the respondent union by relying upon documentary evidence and by cross examining the witness of the respondent union, which was followed by the oral arguments by all the parties. Page 16 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024
NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined 3.11 That there are some of the workmen forming part of the list and attached with the present Reference who abandoned the work of the respondent contractors and therefore the respondent contractors had submitted their list of such workmen who have abandoned the employment of the respondent contractors.
4. Ultimately, the respondent No. 1. vide its award dated 7.2.2014, allowed the reference in favour of the respondent union and directed / declared that (i) the contracts between the petitioner company on the one hand and the respondent contractors on the other hand are sham, bogus, camouflage and a paper arrangement, (ii) that the workmen whose name figured in the list annexed to the reference be considered as the permanent workmen of the petitioner company from the date of their joining and to consider the services provided by the said workmen from the date of their joining till the date of reference before the respondent No. 1, as notional, (iii) the petitioner company within 30 days of the award to undertake to include the names of those workmen still working for the petitioner company from among the list attached to the Page 17 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined reference, as per the provisions of the various labour laws, (iv) from the date of the reference, the petitioner company to grant the benefits / salaries to the workmen who are forming part of the reference and to deduct the benefits / salaries already accrued and paid to them and to further provide 30% of the balance, by way of three equal installments, (v) after the initiation of the reference, if any workman has passed away or has attained superannuation or submitted resignation, in such circumstances the petitioner company will treat the said workman as a permanent workmen till the workman was with the petitioner company and provide the benefits as required,
(vi) the petitioner company to pay cost of Rs 25.000/- to the respondent union, (vii) to implement the award within 30 days from the date of the award being published.
5. Being aggrieved and dissatisfied by the aforesaid award passed by the respondent No. 1, the petitioner - Gujarat Industries Power Company Ltd. preferred two petitions before this Court being Special Civil Application Nos.5707 and 5712 of 2014 respectively and the Union also preferred two petitions before this Court being Special Civil Application Nos.19387 and 19388 of 2015 before this Court under Article 226 of the Page 18 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined Constitution of India read with the provisions of Industrial Disputes Act, 1947 and Contract Labour (Regulation and Abolition) Act, 1970.
6. The respondent Union had raised an industrial dispute and therefore, the Deputy Director had referred the dispute before the Labour Court, Surat vide its order dated 26.11.2001. The respondent Union had freed workmen working in the Company from the date on which they joined the services in the Company and were considered as permanent employees in the Company and paid all consequential benefits. The list of 125 workmen alongwith their dates of joining is appended to the reference and referred by the Presiding Officer. After considering the relevant facts and the evidence on record and after considering the submissions advances by both the sides, the Presiding Officer, Labour Court had framed issues that, (i) whether the contract entered into by and between the Company and respondent nos.2, 3 and 4 is sham and bogus and camouflage, (ii) whether the Industrial Tribunal has power to decide the same, (iii) whether the reference referred by the concerned Deputy Labour Commissioner falls under the provisions of 2(k) of the Industrial Disputes Act, 1947, (iv) Page 19 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined whether all the workmen enlisted in the list appended to the petition be considered to be the workmen of the Company working under the Contract Act, 1970 and whether they are entitled to be considered as permanent employees of the Company and, (v) whether they are entitled for all the consequential benefits similar to the regular employees of the Company. After considering all these facts at length, the Labour Court has partly allowed the reference by passing the impugned award dated 07.02.2014. The said order is under challenge now.
6.1 Considering the submissions canvassed by the learned advocate for the petitioner, this Court issued notice on 13.06.2014, pursuant to which, the respondents appeared and on 05.08.2016, this Court passed a detailed order admitting the matters and granted interim relief as observed in paragraph 4, which is reproduced hereunder :
"4. Hence, by way of interim relief, the impugned ward shall remain stayed, however on condition that status quo shall be maintained in respect of the service conditions of the such workmen. Such status quo would mean that workmen who are presently working through existing contractor, as per the stand of the company, shall be allowed to work with the company and on expiry period of contract, if there is new contractor engaged by the company, then also, the company shall see to it that the workmen shall be engaged by such new contractor. It is further provided that if there is no fresh or Page 20 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined new contract given to any contractor, then also the petitioner-company shall allow such workmen to continue to work with the company. However, such would be subject to rights and contentions of the parties in the present proceedings. In case of any difficulty, it is open to any party to move the Court for appropriate relief."
6.2 Thereafter, pending the writ petitions, this Court vide order dated 31.07.2023, after hearing the concerned parties and after considering the requests made by all the concerned parties that there are all possibilities of settlement as the negotiable talks are going on, the matters may be referred to the Mediation Center and therefore, this court had referred the matters to the Mediation Center of this court vide order dated 31.07.2023, which is reproduced hereunder :
"Mr. Anuj Trivedi, learned advocate for the petitioners, as well as, as per the instructions of Mr. Sachin Vasavada, learned advocate for the respondent nos.11, 12, 20 & 21 and Ms.Aparajita Roy, learned advocate for Mr. Bhushan Oza, learned advocate for the respondent no.35 have jointly submits that the matter is likely to be settled between the parties as the negotiation talks are going on. However, if the matters referred to the Mediation Center of this Court, it will come to and end with the intervention of the Mediator.
As such let the matters be referred to the High Court Mediation Center. The Secretary, Mediation Center of this High Court shall initiate the proceedings for mediation by issuing Notice upon the parties to resolve the dispute pending between the parties through the Mediator and submit the report.
Matters be listed after the mediation process gets over."
6.3 In response thereto, the Mediation took place between all Page 21 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined the concerned parties and on 12.06.2024, the mediator has submitted a report that the mediation is successful as per the amicable settlement and the same is reduced in writing and considered as a 2(P) settlement, whereby, the Company and the respondents agreed to act upon the 2(P) settlement on certain terms and conditions, which are enumerated hereunder:
Terms and Conditions :
1. Absorption:
The parties agree and accept that only those Workmen who are on the Wage Register of the Contractors as on 30.04.2024, and who are listed in Annexure-I to the present MoS, would be absorbed as permanent Workmen into the permanent roll of the Company subject to the terms and conditions of the present MoS with effect from date of the present MoS.
2. Grade / Category of Workmen:
It is agreed that the present Contract Workmen being absorbed do not have similar work profile like the company i.e. GIPCL employees and therefore, the Contract Workmen referred in Annexure-I to the present MoS would be absorbed by the Company and bifurcated in the following grade / category as formulated and would be granted benefits as follows:
Grade Category Criteria Category
Agreed by
both the
party
WA1 Skill ITI (Performing Technical Work) A
WB2 Semi Non ITI performing Technical B
Skill Work
WC3 Un Skill Helper, Housekeeping, C
Horticulture, Peon, Sweeper
Performing Un Skill work,
Loading / unloading and such
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others.
3. Pay-Scale, Allowances & Benefits:
3.1 It is agreed between the parties that the Contract Workmen stated in the Annexure-I to the present MoS would be absorbed by the Company as permanent Workmen into the permanent roll of the Company shall be entitled to the following pay-scale, allowances and benefits per month:
Grade / Category Sr. (A) (B) (C) Particulars No SSK USK SK (Skill) (Semi Skill) (Un Skill) Helper, House ITI Non ITI Keeping, (Performing (Performing Peon, Criteria Technical Technical Sweeper Work) Work) (Performing Un skilled Job) WA1 WB2 WC3 Pay-Scale of Pay-Scale of Pay-Scale of Workmen WA1 WB2 WC3 Fixation Category / Grade Fixation at Fixation at at Minimum 14th 4th Stage Incremental Incremental Stage Stage 1 BASIC 8,190 5,990 5,210 DEARNESS 11,119 8,132 7,073 ALLOWANCE 2 @ 135.76% (Q3 of 23-
24) TOTAL BASIC + 19,309 14,122 12,283 DEARNESS 3 ALLOWANCE (60%) (A) HOUSE RENTAL 2,457 1,797 1,563 4 ALLOWANCE 30% of BASIC 5 REMOTE ALLOWANCE 400 300 200 CONVEYANCE 2,715 2,715 2,715 6 ALLOWANCE 7 MEDICAL ALLOWANCE 600 600 600 WASHING 1,430 1,430 1,430 8 ALLOWANCE 9 CANTEEN ALLOWANCE 260 260 260 Page 23 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined VEHICLE 350 350 300 10 MAINTENANCE ALLOWANCE EDUCATION 200 200 200 11 ALLOWANCE MAGAZINE 100 100 50 12 ALLOWANCE 13 MOBILE ALLOWANCE 150 150 100 14 UNIFORM ALLOWANCE 250 250 250 15 GENERAL ALLOWANCE 3,707 754 77 INCONVENIENCE 200 200 100 16 ALLOWANCE LEAVE TRAVEL 372 372 372 17 CONCESSION FOR 4.5 PERSONS TOTAL 13,191 9,478 8,217 18 ALLOWANCES (B) MONTHLY GROSS 32,500 23,600 20,500 (A+B) = C 19 (BASIC + DA + ALLOWANCES) PROVIDENT FUND 1,800 1,695 1,474 20 12% WORKMEN SHARE (-) FINAL TAKE HOME 30,700 21,905 19,026 21 PER MONTH 3.2 Pay scale:
The Basic Pay-Scale payable to the Contract Workmen stated in Annexure-I, with effect from the date of the present MoS, shall be as follows:
Grade WA1 : Category 'A' : Basic Pay Rs.5,350/-; Grade WB2 : Category 'B' : Basic Pay Rs.5,310/-; Grade WC3 : Category 'C' : Basic Pay Rs.5,210/-.
3.3 It is categorically agreed between the parties that the abovementioned pay-scale, allowances and benefits shall be granted by the Company to the Contract Workmen with effect from the date of the present MoS.
4. Increment:
It is agreed between the parties that the Contract Workmen referred to Annexure-I to the present MoS, shall be entitled to increments as follows:
4.1Grade WA1 : Category 'A' : Increment @3% every year on Basic Pay w.e.f. 01.04.2025, rounded off to next ten (10) Rupees. Page 24 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024
NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined 4.2Grade WB2 : Category 'B': Increment @3% every year on Basic Pay w.e.f. 01.04.2025 rounded off to next ten (10) Rupees. 4.3Grade WC3 : Category 'C': Increment @3% every year on Basic Pay w.e.f. 01.04.2025 rounded off to next ten (10) Rupees. 4.4It is agreed by the parties that the annual increment will be released in the month of April every year. Furthermore, the Contract Workmen joining the service after 1 st April, shall be eligible for increment on pro rata basis next year.
5. Dearness Allowance:
5.1 The parties agree that the Dearness Allowance with effect from 01.10.2023, shall be 135.75% of the Basic Pay per month.
5.2 The Dearness Allowance thereafter, will be revised quarterly for every rise or fall of 3 points in the All India Consumer Price Index-
Base (2001=100) with reference to the figure of 135 of the said Index.
5.3 Other rules in this regard will be as prevalent in the Company and as applicable from time to time.
6. Allowances:
6.1It is agreed that rate of Conveyance Allowance shall be revised quarterly based on variation in the petrol price, which is arrived at, as per the approved Company Reimbursement Scheme for Conveyance.
6.2It is agreed that General Allowance shall be flexible and as decided by the Company.
6.3It is agreed that Shift Allowance shall be at the following rates:
Shift Rate
1st First Shift Rs.25/- Per Shift attended
2nd Second Shift Rs.25/- Per Shift attended
3rd Night Shift Rs.50/- Per Shift attended
6.4It is agreed that the Shift Allowance shall be payable for working in the 1st , 2nd and 3rd shift only.
6.5Other rules & regulations shall be the same as prevalent in the Company and applicable from time to time.
7. Bonus / Ex-gratia:
The Company shall pay bonus to the eligible Workmen as per the Payment of Bonus Act, 1965, and the applicable Rules.
8. Provident Fund:
The contribution towards Employee's Provident Fund shall be deducted on the ceiling limit of Rs.15,000/- (Rs.1,800/- will be maximum Page 25 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined contribution per month) and the matching contribution shall be paid by the Company. The same shall be in accordance with the Employee's Provident Act, 1952, and the applicable Rules. Ceiling of Rs.1,800/- for PF deduction shall remain in force unless revised by the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.
9. Gratuity:
9.1 Upon retirement, the Contract Workmen shall be paid gratuity as per the Payment of Gratuity Act, 1972, and applicable Rules.
9.2 The Contract Workmen's entitlement to gratuity shall be from the date of being absorbed in the Company, i.e. from the date of the present MoS.
9.3 A lumpsum amount towards gratuity that the Contract Workmen is entitled for the services rendered till 31.03.2024, shall be paid by the respective Contractors.
9.4 It is agreed between the parties that Workmen stated in Annexure-I and those who have individually signed and accepted this MoS shall not raise any claim / disputes / demand, of whatsoever nature, including but not limited to retirals dues such as Gratuity, etc. and any other benefit for the period prior to the date of absorption in company.
10. Medical Facilities:
10.1 The Company shall take group medical insurance policy for the Contract Workmen and their family and they will be allowed to avail the services of Occupational Health Centre, subject to prevalent rules from time to time.
10.2 For the purpose of Clause 10.1, "Family" means spouse and two unmarried children up to the age of 25 years and the same shall be considered as dependents of the employee. In case of working spouse, the facility from any one place can be claimed and the dependent child below the age of 25 years, who is employed, will not be considered as a dependent.
10.3 It is agreed by the parties that group medical insurance policy shall be discontinued, once Employees State Insurance Act, 1948, is made applicable to SLPP.
11. Leave:
The parties agree that the provision of leave of the Workman shall be as follows and other rules pertaining to leave including availment shall be as prevalent in the Company:
Privilege Leave 25 days per year Accumulation limit is 300 Page 26 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined Sick Leave 10 days per year Accumulation without limit No Accumulation Casual Leave 12 days per year Public Holiday / Restricted Holiday 10 days per year No Accumulation
12. Benevolent Fund Scheme:
12.1The same is a separate scheme for the Contract Workmen stated in Annexure-I of the present MoS, and those under the Grade WA1, WB2 & WC3, i.e. Categories A, B & C. 12.2On death of a Workmen, One day Salary (Basic + Dearness Allowance) of all employees of Grade WA1, WB2 & WC3 i.e. Category A, B & C shall be deducted and the amount so collected, shall be matched by the Company. The said entire amount shall be paid to the legal heir of the deceased Workmen.
12.3Other terms and conditions with regard to the same shall be as per the prevalent policy of the Company and as mentioned in Clause 12.1 and 12.2 only.
13. Funeral Expenses:
The Company shall pay an amount of Rs.5,000/- to the eldest serving heir of the deceased Workman to meet with the funeral expenses.
14. Lumpsum Payment:
14.1It is agreed by and between the parties that the Contract Workmen absorbed by the Company, and listed at Annexure-I to the present MoS, shall be paid a onetime lumpsum payment as a goodwill gesture in view of the present MoS arrived at between the parties. The said goodwill gesture lumpsum payment is made as an appreciation towards the Contract Workmen for settling all disputes with the Company and the Contractors and for waiving any and all rights/benefits/dues, etc. that may be alleged to be accrued to them for their services prior to the present MoS and that which the Contract Workmen may otherwise be entitled to under the Awards dated 07.02.2014, passed by the Industrial Tribunal, Surat. The said one-time goodwill gesture lumpsum payment to each Workmen shall be as under:
Grade Category Lumpsum amount
per Workmen
WA1 A : Skilled Rs.8,00,000/-
WB2 B : Semi-Skilled Rs.5,00,000/-
WC3 C : Un-Skilled Rs.4,00,000/-
14.2The Union and the Contract Workmen categorically agree that 5% Page 27 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined of the aforesaid goodwill gesture lumpsum amount is to be deducted from the amount payable to workmen and the same shall be paid by the Company to the Union towards Union Fees on behalf of the Contract Workmen.
14.3It is categorically agreed that the said one-time goodwill gesture lumpsum payment will be made solely because of the fact that the parties settling the dispute and putting the prolonged litigation to an end. In view thereof, by way of application, the Contract Workmen agree and undertake not to seek, press for or demand any further amounts for the previous period, including but not limited to the alleged previous dues / demands / back wages / gratuity / arrears / compensation / outstanding amounts, etc. In light of the above, the one-time goodwill gesture lumpsum payment shall not be subjected to provident fund contribution by the Company or the Contract Workmen.
14.4The aforesaid cheques shall be paid by the Company to the Union and Contract Workmen within a period of thirty (30) days from the date of execution of the present MoS.
15. Grant of Absorption, Pay-Scale, Increment, Allowances, Benefits & Lumpsum Payment:
15.1 The Union and Workmen categorically agree and accept that the Contract Workmen stated in Annexure-I to the present MoS were in the employment of their respective Contractors as on the date of both the Awards dated 07.02.2014 and presently working as such as on 30.04.2024 and therefore, as directed in the said Awards and as agreed by and between the parties in the present Mos, they shall be absorbed by the Company, in their respective category/grade.
15.2 The Contract Workmen stated in Annexure-I to the present MoS shall be granted all the above-mentioned benefits, from the date of the present MoS.
15.3 It is categorically agreed by all the parties that the present MoS is the Full and Final Settlement and no further or other amounts or benefits shall be paid or granted to the Contract Workmen stated in Annexure-I to the present MoS.
15.4 The Pay-Scale, Increment, Allowances and other benefits shall come into effect upon absorption of the Contract Workmen stated in Annexure-I to the present MoS.
15.5 It is categorically agreed by all the parties in view of the present MoS, as well as, all the benefits being granted by way of the present MoS to the Contract Workmen stated in Annexure-I and their absorption into the Company, there are no longer any outstanding dues / demands / back wages / gratuity / arrears / compensation / outstanding amounts, etc. due to the said Page 28 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined Workmen, either by way of the Awards dated 07.02.2014, passed by the Industrial Tribunal, Surat or otherwise. The Contract Workmen stated in Annexure-I to the present MoS categorically agree and undertaken that they waive and shall not press for or demand any amounts, dues or benefits which do not form a part of the present MoS. Upon payment of the amounts stated in the present MoS, the award passed orders dated 07.02.2014, shall be deemed to be satisfied and implemented and the Contract Workmen shall not seek the implementation of the Awards dated
07.02.2014, passed in Ref. (IT) Nos. 72/2001 & 103/2001. 15.6 The Union and the Contract Workmen categorically agree, state and undertake that they shall not be entitled and shall not demand any further and other amounts and benefits over and above that which is stated in the present MoS, directly or indirectly. 15.7 The Union and the Contract Workmen categorically agree, state and undertake that they shall not seek compliance or enforcement of the Awards dated 07.02.2014, passed in IT Ref No.72 & 103/2001. The Union and Workmen categorically waive and relinquish any and all rights, entitlements, benefits and amounts that have been awarded to them by way of both the Awards dated 07.02.2014.
15.8 The parties categorically agree and confirm that the present MoS shall be placed on record of the Hon'ble High Court of Gujarat in Special Civil Application Nos.5707 & 5712 of 2014 and Special Civil Application Nos.19387 & 19388 of 2015 and the parties shall seek for disposal of the said petitions in accordance with the terms and conditions of the present MoS.
15.9 With regard to the Contract Workmen referred to Annexure-II of the present MoS, it is agreed that the Contract Workmen referred to therein have deceased whilst being on the rolls of the Contracts. Their legal heirs shall be paid one-time goodwill gesture lumpsum payment at rate mentioned as per Clause No.14 herein by the Company. The said amount would be arrived at based upon the Category to which the Contract Workmen belonged, i.e. Category A, B or C multiplied by 20 (no. of years considered by the Company for goodwill gesture lumpsum payment) divided by the number of years served by the deceased Workmen at the Company. The said goodwill gesture lumpsum payment is being paid on humanitarian ground. For the said purpose, the legal heirs shall approach the Company with an Application accompanied with a Death Certificate, Proof of Heirship, such as photo-Id, marriage certificate, birth certificate, proof of address, joint-bank account details, bank details, indemnity bond etc. The said one-time goodwill gesture lumpsum payment is being paid on humanitarian ground. However, with regard to the Contract Workmen who came to be deceased subsequent to their retirement from the rolls of the Page 29 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined Contracts, their legal heirs shall not be entitled to any amount. 15.10 With regard to the Contract Workmen referred to Annexure-III of the present MoS, it is agreed that the Contract Workmen referred to therein have retired during the pendency of the abovementioned proceedings. They shall be paid one-time goodwill gesture lumpsum payment at rate mentioned as per Clause No. 14 hereinabove by the Company. The said amount would be arrived at based upon the Category to which the Contract Workmen belonged, i.e. Category A, B or C multiplied by 20 (no. of years considered by the Company for one-time goodwill gesture lumpsum payment) divided by the number of years served by the retired Workmen at the Company. The said one-time goodwill gesture lumpsum payment is being paid on humanitarian ground.
15.11 With regard to the Contract Workmen referred to Annexure-IV of the present MoS, it is agreed that the Contract Workmen referred therein are medically unfit to continue in service. It is agreed that they shall be paid one-time goodwill gesture lumpsum payment at rate mentioned as per Clause No.14 hereinabove by the Company. The said amount would be arrived at based upon the Category to which the Contract Workmen belonged, i.e. Category A, B or C multiplied by 20 (no. of years considered by the Company for one-time goodwill gesture lumpsum payment) divided by the number of years served by the Contract Workmen at the Company. The said one-time goodwill gesture lumpsum payment is being paid on humanitarian ground. For the said purpose, the Contract Workmen shall approach the Company with an Application accompanied with the requisite medical report / medical certificate from a Government Civil Hospital, Surat.
15.12With regard to the Contract Workmen referred to in Annexure-V of the present MoS, it is agreed that the Contract Workmen referred to therein have abandoned their service and/or are on a long term absenteeism without any cause or intimation and who were / are not in the employment of their respective contractors as on the dates of the Awards dated 07.02.2014, as well as, till the cut-off date of 30.04.2024 under this MoS and have not raised any dispute of whatsoever. The said Workmen shall not be entitled to any amount or any benefit under the present MoS. 15.13With regard to the Contract Workmen referred to in Annexure-VI of the present MoS, the Contract Workmen referred to therein have withdrawn from the above-mentioned proceedings before the Learned Industrial Tribunal in view of their getting more beneficial employment elsewhere. The said Workmen shall not be entitled to any amount or any benefit under the present MoS. 15.14 With regard to the Contract Workmen referred to in Annexure- Page 30 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024
NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined VII of the present MoS, it is agreed that the Contract Workmen referred to therein have either been terminated and/or filled complaint before Learned Industrial Tribunal, Surat, for which the proceedings are pending in the Hon'ble High Court of Gujarat and the said workmen shall not be entitled to any amount or benefit under the present MoS.
15.15 With regard to the Contract Workmen referred to in Annexure-
VIII of the present MoS, it is agreed that out of 543 (i.e. 418 +
125), the Contract Workmen that had approached the Learned Industrial Tribunal, Surat, two (2) Workmen are those whose names are repeated / duplicated and three (3) Workmen are not existing and are unnamed.
15.16 With regard to the Contract Workmen referred to in Annexure-
IX, it is agreed that fifty-four (54) Workmen are not a party to the present MoS. Out of the same, four (4) are retired and one (1) is medically unfit. In the event that the said Contract Workmen [barring the aforesaid five (5) (i.e. 4+1)] retiring and medically unfit, seek the same benefits as being granted under the present MoS, the Union does not have any objection, if the company extends the benefit of the present MoS to the said 54 workmen upon their signing the undertaking as prescribed in Annexure-X.
16. Uniform and Stitching Charges:
16.1 With regard to male Workmen, the Company shall provide the requisite material / cloth to the Contract Workmen to have three (3) pairs of uniform, i.e. pant & shirt stitched, per calendar year.
For the said purpose, the Company shall also provide for stitching expenses to the Contract Workmen as may be decided from time to time which is at present Rs.2,100/-, which shall also be given once in a calendar year.
16.2 With regard to the female employees, the Company shall provide three (3) sarees/punjabi dress material, per calendar year.
17. Safety Gears:
17.1 All Workmen shall be issued one pair of Safety Shoes and Safety Helmet, once in a calendar year. Rain Coat / Umbrella and Gum Shoes shall be available in the common pool and Safety Goggles and Dust Masks shall be issued based on the nature of work allotted to the Contract Workmen.
17.2 Other safety rules / practices shall be followed with regard to eligibility, periodicity etc. as prevalent in the Company and as applicable from time to time.
18. Canteen Facility:Page 31 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024
NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined The same shall be provided by the Company as per existing Company rules.
19. Group Personal Accident Policy (GPA):
It is agreed that Group Personal Accident Policy will be taken by the Company as per the prevailing Company practice. The benefits arising out of the said scheme shall be granted in case of death arising out of an accident occurring during the course of work. This shall be online of ESIC and will be replaced on ESIC being applicable at SLPP.
20. Annual Health Check-up:
As per the prevalent rules and Company policy, the Annual health Check-up shall be carried out once every year.
21. Accommodation:
No accommodation either in township or at any other place whatsoever shall be provided to the Contract Workmen. As against the same the Company shall pay House Rental Allowance to the Contract Workmen, as stated above.
22. Transport facility:
No Transport facility irrespective of the place of work shall be provided, except in case of medical emergency whilst the Contract Workmen is on duty.
23. Transfer:
It is agreed by the Union and Workmen that the services of absorbed Workmen are liable to be transferred / assigned anywhere in India to any office / establishment / branch / department / Sites / Company and / or any member or sister concern of the Company on deputation at other organisation / or its collaborations / associates related to any project and the Contract Workmen shall be subject to and abide by the rules and regulations prevailing at such place of work. In such an event, the pay-scale, allowances and other benefits mentioned hereinabove shall continue. It is also agreed that workmen can be transferred to any section / department / machines / or on any process as per requirement.
24. Promotion:
The Contract Workmen shall be entitled for promotion as per the policy of the Company for grades WA1, WB2 and WC3.
25. Overtime:
Overtime shall be given as per provisions of the Factories Act, 1948.
26. Travel Allowance:
As per the prevalent rules and policy of the Company.Page 32 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024
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27. Gate Entry:
Workmen shall be allowed to enter from Gate No.2 for performing duties and shall abide by the rules of attendance recording system of the Company.
28. Attendance Punching:
Attendance of the Contract Workmen shall be considered based on the existing Face Recognition System and other rules in this regard, as prevalent in the Company, from time to time, shall be applicable.
29. Pre-employment Medical Check-up:
As per the Company's requirement, the Contract Workmen shall undergo a pre-employment medical check-up and obtain a declaration of being fit to perform duty from the Company's Medical Officer subsequent prior to being absorbed in the Company.
30. No Generation loss:
The Union and Workmen categorically agree to ensure that on account of no workmen, either collectively or individually reporting for or being available on duty, any situation shall be created, which results in stoppage of Power Generation and the Company's plant and machinery. The Union and Workmen agree and undertake that in the event, the power generation or any plant and machinery is stopped, the same shall be treated as grave misconduct and appropriate disciplinary action shall be initiated against individual / group of Workmen, which may result into any punishment, including termination from duty.
31. Adhoc payment:
As per the prior agreement between the Contractors and the Union and Workmen, a lumpsum amount towards Special Adhoc Allowance was paid by Contractor to the Contract Workmen, as per the following table. However, in view of the present MoS, the parties agree that no further amount, under whatsoever head shall be paid by the Contractors to the Contract Workmen and the Union and Workmen undertake not to seek any recovery from the Contractors. Furthermore, the Contractors shall also not seek any recovery of the amounts paid to the Contract Workmen.
Category Period
01.09.10 to 01.11.17 to till
31.10.17 date
Un-Skilled 900 1100
Semi-Skilled 1200 1300
Skilled 1200 1600
32. Revision of Terms and Conditions:
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The terms and conditions of the present MoS shall be in effect for a period of five (5) years, i.e. from the date of the present MoS. During the said period, the Union and the Contract Workmen shall not raise any demand over and above the terms and conditions of the present MoS that may result in financial burden on the Company. Subsequent to completion of the said five (5) years, the the terms and conditions of the present MoS may be revised as per the mutual understanding between the Company and the Union.
33. School:
The children of the Contract Workmen shall be given admission in the school at present managed by Bharatiya Vidya Bhavan's GIPCL Academy, as per the available vacancy in the respective classes of the school and the existing rules and regulation.
34. Probation:
Probation period shall be one year from the date of joining as per the rules and regulation of the Company.
35. Appraisal:
Performance Appraisal shall be carried out on a yearly basis as per the prevalent rules and regulation of the Company.
36. Minor change in workmen name:
In case of those Workmen having any anomaly in his/her name, the Company shall call upon the Contract Workmen to submit an affidavit declaring their rightful legal name and the Contract Workmen is obligated to submit the same on an immediate basis along with the necessary documentary evidence.
37. Settlement of Disputes:
That the Company and the Union have collectively agreed to settle any dispute or differences that may arise between the company and the Contract Workmen in connection with the interpretation of this settlement, wherein the decision of the management shall be binding and final.
38. Undertaking:
Every Workmen referred to in Annexure-I to the present MoS shall submit an Undertaking with the Company as prescribed in Annexure-X to the present MoS. In the event of failure of the Contract Workmen to give such an Undertaking, the Contract Workmen shall not be entitled to receive any benefits including absorption into the Company under this MoS.
6.4 The petitions were filed in the year 2014 and 2015 Page 34 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined respectively, at that relevant point of time, all these 54 workmen were also party to these petitions till 2023 and they had chosen not to depart from this Union who represented the case of all these 543 workmen and thereafter, some dispute cropped up amongst the members of the Union and these 54 workmen have chosen to agitate their grievance separately.
On submission of the Full & Final Memorandum of Settlement dated 07.06.2024 under Section 2(P) read with Section 18(3) of the Industrial Disputes Act, 1947, before the Court, the learned advocate Ms.Kruti M. Shah, appearing on behalf of these 54 workmen, who have filed the Civil Applications for joining them as party respondents to the writ petitions, has opposed the said settlement and submitted that out of total 543 workmen [418 workmen in Reference (IT) No.72/2001 and 125 workmen in Reference (IT) No.103/2001], 43 workmen from the Reference (IT) No.72/2001 and 11 workmen from the Reference (IT) No.103/2001 have objected this 2(P) settlement and they have not accepted the terms and conditions of the said settlement as they have preferred the civil applications for joining them as party respondents in the writ petitions filed by the Company and the Union.
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NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined 6.5 In the wake of such submissions, since 54 workmen have objected the 2(P) settlement and the conditions enumerated therein, this Court thought it fit to give an opportunity to the learned advocate Ms.Shah for the applicants in civil applications to advance her arguments.
7. Learned Advocate General Mr.Kamal Trivedi assisted by learned advocates Mr.Anuj Trivedi and Mr.Vaibhav Goswami, has submitted that this 2(P) settlement is accepted by a larger group of workmen who had raised the respective reference before the Labour Court and therefore, it is in the interest of this remaining 54 workmen that they also accept this 2(P) settlement. He has submitted that even in 2(P) settlement also, it is provided in column no.15 that even otherwise, if this 54 workmen who are represented through learned advocate Ms.Shah did not agree and accept this settlement, then also, by virtue of this settlement the petitioner-Company is agreed to extend the benefits to all those 54 workmen also and therefore, without causing any prejudice to the rights and contentions of those 54 workmen, this 2(P) settlement be allowed and the impugned award passed by the Labour Court be modified to the extent.
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NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined 7.1 Since the group of 54 workmen are objecting the 2(P) settlement, learned Advocate General Mr.Trivedi has submitted that in view of the decision of the Hon'ble Apex Court in case of K.P.C. Limited Vs. Presiding Officer and Others, reported in [1996] 10 SCC 446, wherein, in the similar set of facts, the Hon'ble Apex Court has considered that, when a larger group of workmen represented by the Union are accepting the terms and conditions of the 2(P) settlement and other remaining workmen are not accepting the said terms and conditions, then it is binding upon the others also under the provisions of Section 18(1) and 18(3) as it is a comprehensive settlement and the settlement is arrived at by and between the Company and the workmen in presence of the mediator of this Court appointed by a judicial order of this Court and it is not under any duress or compulsion. He has submitted that it is also not the case that the Union or the workmen who have accepted this settlement and have signed and agreed to act upon this settlement is done by fraud or by applying any duress or compulsion and therefore, in view of the observations made by the Hon'ble Apex Court in case of K.P.C. Limited (Supra) there is nothing adverse against this group of Page 37 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined 54 workmen who are not ready and willing to accept this settlement.
7.2 Learned Advocate General Mr.Trivedi has further submitted that 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. In support of his submissions, learned Advocate General Mr.Trivedi has referred and relied upon the decision of the Hon'ble Apex Court in case of Herbertsons Limited Vs. The Workmen of Herbertsons Limited, reported in [1976] 4 SCC 736.
8. Learned advocate Ms.Shah, appearing on behalf of these 54 workmen, has tendered Additional Affidavit filed in support of the applications for joining party, filed on behalf of this 54 workmen who are objecting this 2(P) settlement, the same is taken on record. In response to the submissions canvassed by the learned Advocate General Mr.Trivedi, learned advocate Page 38 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined Ms.Shah has submitted that this settlement is not genuine and free from the willingness of the workmen, which is nothing but an eye-wash since last more than 20 years these workmen have waited for this and therefore, they are not agree to accept this settlement.
8.1 Learned advocate Ms.Shah has submitted her written submissions dated 03.07.2024 on behalf of the applicants of civil applications (i.e. 54 workmen) objecting the 2(P) settlement stating therein as under :
[A] MoS dated. 07.06.2024 purported to have been entered under Section 2(p) with Section 18 (3) of the Industrial Disputes Act 1947, produced before this Hon'ble Court, is not settlement as per the provisions of industrial disputes Act and is not binding to the applicants for the following reasons :
(a) Section 2(p) which defines settlement does not include the so called settlement dated 07.06.2024, as per the definition.
(b) So called MOS dated 07.06.2024 is executed during mediation proceedings of the high Court of Gujarat and a Page 39 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined mediator is not a conciliation officer as per Section 4 of the Industrial Dispute Act, a mediator of mediation center of High Court of Gujarat is not covered to be competent as conciliation officer under Section 11 (6) of the Industrial Dispute Act.
(c) The so called MoS has not passed through the procedure and the provisions prescribed under Section 12 of the Industrial Dispute Act, and under Rule 58 of the Industrial Disputes (Central) Rules 1957, for which the reliance is placed on the judgment of the Hon'ble Supreme Court in the case of :
(i) Workmen of Delhi Cloth and General Mills Vs. Management of Delhi Cloth and General Mills Ltd.
reported in 1969 (3) SCC 302, wherein, it has been observed and held as under :
"11. We now turn to the merits of the controversy. The Tribunal took the view that the dispute regarding retirement age of Shibban Lal ceased to be an industrial dispute because of the settlement dated June 9, 1965 and, therefore, it could not be referred to it for adjudication. Support of his case by the workers of any other Union after reference could not in its view validate the reference. The appellant's learned counsel challenged this view and drew our attention to Rule 58 of the Industrial Disputes (Central) Rules, 1957 made under S. 38 of the Industrial Disputes Act, 1947. This rule reads as under :
"58. Memorandum of settlement:
(1) A settlement arrived at in the course of conciliation Page 40 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined proceedings or otherwise shall be in form 'H' (2) the settlement shall be signed-
(a) in the case of an employee, by the employer himself, or by his authorised agent, or when the employer is an incorporated company or other body corporate, by the agent, manager or other principal officer of the corporation;
(b) in the case of workmen, by any officer of a trade union of workmen or by five representatives of workmen duly authorised in this behalf at a meeting of the workmen held for the purpose. Explanation-In this rule "officer"
means any of the following officers, namely - (a) the President; (b) the Vice-President; (c) the Secretary (including the General Secretary); (d) a Joint Secretary; (e) any other officer of the trade union authorised in this behalf by the President and Secretary of the Union.
(3) Where a settlement is arrived at in the course of conciliation proceeding the Conciliation Officer Shall send a report thereof to the Central Government together with a copy of the memorandum of settlement signed by the parties to the dispute.
(4) Where a settlement is arrived at between an employer and his workmen otherwise than in the course of conciliation proceeding before a Board or a Conciliation Officer, the parties to the settlement shall jointly send a copy thereof to the Central Government, the Chief Labour Commissioner (Central) New Delhi, and the Regional Labour Commissioner, New Delhi, and to the Conciliation Officer (Central) concerned."
Form 'H' may also now be reproduced "Form for Memorandum of Settlement Name of parties Representing employer (s) Representing workmen :
Short recital of the case Terms of settlement Witness: (1) Signature of the parties. (2) Signature of Conciliation Officer, Board of Conciliation.
Copy to: (1) Conciliation Officer (Central)............. (here enter the office address of the Conciliation Officer in the local area Page 41 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined concerned). (2) Regional Labour Commissioner (Central). ........(3) Chief Labour Commissioner (Central) New Delhi...... (4) The Secretary to the Government of India, Ministry of Labour, New Delhi."
12. The plain reading of the rule and the Form, according to the appellant, clearly suggests its mandatory character. It was contended that the settlement was not entered into with the concurrence of he Conciliation Officer nor was it entered during the conciliation proceedings. Particular emphasis was laid on noncompliance with sub-rule (4). The settlement, in the circumstances, was urged to be invalid and the reference of the dispute quite in accordance with law. In this connection the learned advocate referred to s. 18 of the Industrial Disputes Act, 1947 which is as follows :
"18. Persons on whom settlements and awards are binding.-
(1) A settlement arrived at by agreement between the employer and workmen (otherwise than in the course of conciliation proceeding) shall be binding on the parties to the agreement.
(2) Subject to the provisions of sub-section (3) an arbitration award which has became enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration.
(3) A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has be-en issued under sub-section (3A) of section 10A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on : (a) all parties to the industrial dispute; (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, Arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause; (c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors, or assigns in respect of the establishment to which the dispute relates; (d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment-or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute Page 42 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined and all persons who subsequently become employed in that establishment or part."
13. The decision in The Bata Shoe Co. (P) Ltd. v. D. N. Ganguly was cited in support of the submission that a settlement during the conciliation proceedings to be binding must be arrived at with the assistance and concurrence of the Conciliation Officer.
14. The respondent's learned Advocate in reply obliquely suggested in this connection that the Management and the Union were free to arrive at a settlement of their dispute and if they agreed to do so then the agreement could not but be held to be binding. We do not think the Management and the Union can, when a dispute is referred to the Conciliation Officer, claim absolute freedom of contract to arrive at a settlement in all respects binding on all workmen, to which no objection whatsoever can ever be raised by the workmen feeling aggrieved. The question of a valid and binding settlement in such circumstances, is in our opinion, governed by the statute and the rules made thereunder. Reliance was next placed on s.18(1) to support the binding character of the settlement. This sub-section for its pro- per construction must be read with the other sub-sections and the relevant rules, in the light of the definition of 'settlement' as contained in s. 2(p) of the Industrial Disputes Act. 'Settlement' as defined therein means settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate Government and the Conciliation Officer. In the light of these provisions we do not think that s.18(1 ) vests in the Management and the Union unfettered freedom to settle the dispute as they please and clothe it with a binding effect on all workmen or even on all member workmen of the Union. The settlement has to be in compliance with the statutory provisions."
(ii) the judgment rendered in the case of Brooke Bond India Ltd Vs. Workmen, reported in 1981 (3) SCC 493, wherein, it has been observed and held as under :
"6. Section 2 (p) of the Industrial Disputes Act defines Page 43 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined "settlement";-
"Settlement" means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer;"
In the present case the purported settlement was arrived at not in the course of conciliation proceedings. Section 18 (1) of the Act provides:
"Section 18. Persons on whom settlements and awards are binding:
(1) A settlement arrived at by agreement between the employer and workmen otherwise than in cause of conciliation proceeding shall be binding on the parties to the agreement :"
7. It is also necessary to refer to rule 62 (2) (b) of the Industrial Disputes (Bombay) Rules, 1957. Rule 62 (2) (b) is as follows:
"62. Memorandum of Settlement:-
(1) xxx (2) The settlement shall be signed by:
(a) xxx
(b) in the case of workmen, either by the President or Secretary (or such other officer of a trade union of the workmen as may be authorised by the Executive Committee of the Union in this behalf ), or by five representatives of the workmen duly authorised in this behalf at a meeting of the workmen held for the purpose."
Sub-rule (4) of rule 62 requires the parties to the settlement to send copies thereof jointly to the prescribed authorities. That this was done in the present case is not disputed. It was argued on behalf of the appellant that as the agreement was signed in the manner prescribed by rule 62 (2) (b) and as the requirements of rule 62 (4) have been complied with, the agreement must be accepted as a settlement within the meaning of section 2 (p) of the Industrial Disputes Act and as such binding on the Rashtriya Union under section 18 (1) of the Act. But, as pointed out by the Tribunal rule 62 only prescribes the form of the memorandum of settlement and by whom it should be signed, and the question whether the procedure Page 44 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined prescribed by rule 62 has been complied with will arise only if there is in existence a valid settlement between the parties concerned. In this case it has been found that the office bearers who signed the agreement were not competent to enter into a settlement with the company and as such it cannot be said that an agreement was reached between the employer and the workmen represented by the Rashtriya Union. What is binding as a settlement under section 18 (1) of the Industrial Disputes Act is an agreement between the employer and workmen. Here the Tribunal found that there was no agreement between management and the Rashtriya Union. Reliance was placed on behalf of the appellant on the decision of this Court in Workmen of M/s. Delhi Cloth and General Mills v. Management of M/s. Delhi Cloth and General Mills.(1) In that case among other matters rule 58 of the Industrial Disputes (Central) Rules, 1957 made under section 38 of the Industrial Disputes Act, 1947 came up for consideration. Rule 58(2)(b) of the Central Rules which is similar to rule 62 (2) (b) of the Bombay Rules reads:
"58. Memorandum of settlement:
(1) x x x (2) the settlement shall be signed
(a) x x x
(b) In the case of workmen, by any officer of a trade union of workmen or by five representatives of workmen duly authorised in this behalf at a meeting of the workmen held for the purpose."
It was held that the rule must be fully complied with if the settlement is to have a binding effect on all workmen. Section 18 (3) of the Industrial Disputes Act makes a settlement which has become enforceable, binding among others, on all parties to the industrial dispute. It is not clear why this decision was considered relevant. Possibly this case was referred to for the observation occurring on page 897 of the report: "We may observe here that we were not impressed by the appellant's argument that r. 58 sub-rule (2) (b) required that the officer of a trade union of workmen must also be duly authorised. We, however, do not express any considered opinion in view of our conclusion on other points". Reference to this observation may have been intended as a reply to the construction sought to be put on rule 62 (2) (b) of the Bombay Rules on behalf of the Rashtriya Union that the words "duly authorised" applied not only to the five representatives of workmen" but also to the office bearers mentioned in the rule to enable them to sign the settlement; on such construction it was contended that the office bearers of the Union who signed the Page 45 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined agreement were not specifically authorised to do so. This construction of rule 62 (2) (b) was rightly rejected by the Tribunal. But neither rule 58 of the Central Rules nor rule 62 of the Bombay Rules contains anything to suggest that any officer of a trade union who is entitled to sign a settlement must be deemed to have had the authority to enter into this settlement. The procedure prescribed by either rule 58 of the Central Rules or rule 62 of the Bombay Rules presupposes the existence of a valid settlement, and the question in this case is whether there was such a settlement. Another case relied on by the appellant is The Sirsilk Ltd. and others v. Government of Andhra Pradesh and another.(1) The facts of that case are that after the proceedings before the Tribunal had come to an end and the Tribunal had sent its award to government the parties concerned in the dispute came to a settlement. Section 17 (1) of the Industrial Disputes Act lays down that every award shall within a period of thirty days from the date of its receipt by the appropriate government be published in such manner as the appropriate government thinks fit. Section 18 (1) makes a settlement arrived at between the employer and workmen otherwise than in the course of conciliation proceedings binding on the parties to the agreement. Under section 18 (3) an award of a Tribunal on publication shall be binding on all parties to the industrial dispute. In Sirsilk case difficulty was felt in giving effect to the settlement because the proceedings before the tribunal had ended and the tribunal had sent its award to the government before the settlement was arrived at. This Court held:
"The only way in our view to resolve the possible conflict which would arise between a settlement which is binding under s. 18 (1) and an award which may become binding under s. 18 (3) on publication is to withhold the publication of the award once the Government has been informed jointly by the parties that a settlement binding under s. 18 (1) has been arrived at.. In such a situation we are of opinion that the government ought not to publish the award under s. 17 (1) and in cases where government is going to publish it, it can be directed not to publish the award in view of the binding settlement arrived at between the parties under s. 18 (1) with respect to the very matters which were the subject matter of adjudication under the award."
We think this decision was relied on only to emphasize that a settlement reached between the parties concerned in the dispute must prevail if it is reached at any time before the publication of the award. That is undoubtedly so, but the question before us is Page 46 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined different-which is, whether in fact a settlement within the meaning of section 2 (p) of the Industrial Disputes Act was reached. Other questions will arise only after it is found that there was such a settlement in existence. Sirsilk does not therefore afford any assistance to the appellant. The tribunal in support of the view taken by it relied on a decision of the Delhi High Court. In Hindustan Housing Factory Ltd. v. Hindustan Housing Factory Employees' Union and others, the High Court held:
".. the contention on behalf of the petitioner- company that the fact that the Memorandum of settlement was in the prescribed form and was signed by one or more of the office- bearers of the Union is by itself sufficient to make the settlement arrived at between the Management of the petitioner-company and the signatories binding on the Union and all its members, is untenable...
The language of s. 18 (1) clearly shows that the settlement will be binding only "on the parties to the agreement." The definition of "settlement" in s. 2 (p) of the Act also states that "settlement"
means a settlement arrived at "between the employer and the workmen." So, normally in order that a settlement between the employer and the workmen may be binding on them, it has to be arrived at by agreement between the employer and the workmen. Where the workmen are represented by a recognised Union, the settlement may be arrived at between the employer and the Union. If there is a recognised Union of the workmen and the Constitution of the Union provides that any of its office-bearers can enter into a settlement with the Management on behalf of the Union and its members, a settlement may be arrived at between the employer and such office-bearer or bearers. But, where the Constitution does not so provide specifically, the officer-bearer or bearers who wish to enter into a settlement with the employer should have the necessary authorisation by the executive committee of the Union or by the workmen. A reading of rule 58 clearly shows that it presupposes the existence of a settlement already arrived at between the employer and the workmen, and it only prescribes the from in which the Memorandum of settlement should be, and by whom it should be signed. It does not deal with the entering into or arriving at a settlement. Therefore, where a settlement is alleged to have been arrived at between an employer and one or more office- bearers of the Union, and the authority of the office-bearers who signed the Memorandum of settlement to enter into the settlement is challenged or disputed, the said authority or authorisation of the office-bearers who signed the Memorandum of settlement has to be Page 47 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined established as a fact, and it is not enough if the employer merely points out and relies upon the fact that the Memorandum of settlement was signed by one or more of the office-bearers of the Union."
In our opinion the above extract from the judgment of the Delhi High Court states correctly the law on the point. The appeal is accordingly dismissed; in the circumstances of the case we direct the parties to bear their own costs."
(d) As per Section 18(1) of the Act, the present MoS is not binding to any of the applicants as they are not parties to the agreement and Section 18 (3) of the Act is not applicable at all to the present applicants and only with a view to frustrate the legal rights of the applicants, Section 18(3) is mentioned in the MoS dated 07.06.2024, which shows mala-fide.
(e) MoS dated 07.06.2024 is in violation of provision of the Industrial Employment (Standing Orders) Act, 1946 as there is nothing written in the MoS that the so called settlement confirms the provisions of the standing order applicable to the said company, for which the reliance is placed in the case of Bharatiya Kamgar Karmachari Mahasangh Vs. Jet Airways Ltd. Reported in 2023 (10) Scale 251. [B] MoS dated 07.06.2024 makes reference of the date of Page 48 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined absorption as 30.04.2024, against the date of regularization as date of joining, as granted in the award passed by the industrial tribunal and the amount of pay scale allowance and benefits is less than one third of what is granted to the permanent employee working with GIPCL company. For the reasons best known to the company not a single document has been placed on record in respect of the salary, allowance and other benefits granted to the permanent employees, working at present with the said company and therefore, the settlement is vitiated by fraud and mala-fide. [C] So called settlement dated 07.06.2024 does not confirm to the statutory condition laying down a public policy and must be in consonance with provisions of the Act and the Rules and does not satisfy the test of public policy and does not even satisfy the provision of Section 23 of the Indian Contract Act, because the terms and conditions of the settlement are nothing but exploitation of poor workmen. [D] As the settlement in question is the settlement arrived at outside (Section 18 (1)) the conciliation proceedings and not during the conciliation proceedings (Under Section 18 (3)) the Page 49 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined said settlement is not binding to the applicants who are not parties to the agreement. The reliance is placed on the judgment of the Hon'ble Supreme Court in the case of :
(i) Barauni Refinery Pragatisheel Shramik Parishad Vs. Indian Oil Corporation Ltd. reported in (1991) 1 SCC 4, wherein, it has been observed and held as under :
"8. Since the High Court has answered the first point in the affirmative i.e. in favour of the workmen, we do not consid- er it necessary to deal with that aspect of the matter and would confine ourselves to the second aspect which concerns the binding character of the settlement. Section 2(p) of the Industrial Disputes Act, 1947 defines a settlement as a settlement arrived at in the course of conciliation proceedings and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the officer authorised in this behalf by the appropriate Government and the Conciliation Officer. Section 4 provides for the appointment of Conciliation Officers by the appropriate Government. Section 12(1) says that where any industrial dispute exists or is apprehended the Conciliation Officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner. Sub-section (2) of Section 12 casts a duty on the Conciliation Officer to investigate the dispute and all matters connected therewith with a view to inducing the parties to arrive at a fair and amicable settlement of the dispute. If such a settlement is arrived at in the course of conciliation proceedings, sub-section (3) requires the Conciliation Officer to send a report thereof to the appropriate Government together with the memorandum of settlement signed by the parties to the dispute. Section 18(1) says that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of the conciliation proceedings shall be binding on the parties to the agreement. Sub-section (3) of Section 18 next provides as under:Page 50 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024
NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined "A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section (3-A) of Section 10-A or award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on-
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause;
(c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;
(d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part."
It may be seen on a plain reading of sub-sections (1) and (3) of section 18 that settlements are divided into two categories, namely,
(i) those arrived at outside the conciliation proceedings and (ii) those arrived at in the course or' conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement be- longing to the second category has extended application since it is binding on all parties to the industrial dispute, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. Therefore, a settlement arrived at in the course of conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent it departs from the ordinary law of contract. The object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. There is an underlying assumption that a Page 51 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made binding not only on the workmen belonging to the Union signing the settlement but also on others. That is why a settlement arrived at in the course of conciliation proceedings is put on par with an award made by an adjudicatory authority. The High Court was, therefore, right in coming to the conclusion that the settlement dated 4 th August, 1983 was binding on all the work- men of the Barauni Refinery including the members of Petroleum and Chemical Mazdoor Union."
(ii) the decision of the Hon'ble Supreme Court in the case of The Jhagrakhan Collieries (P) Ltd. Vs. Shri G.C. Agrawal, reported in (1975) 3 SCC 613, wherein, it has been observed and held as under :
"13. It is clear from a perusal of Section 18, that a settlement arrived at in the course of conciliation proceedings is binding not only on the actual parties to the industrial dispute but also on the heirs, successors or assigns of the employer on the one hand, and all the workmen in the establishment, present or future, on the other. In extending the operation of such a settlement beyond the parties thereto, sub-section (3) of the Section departs from the ordinary law of contract and gives effect to the principle of collective bargaining. Thus, had Mr. B. D. Sharma been a duly appointed Conciliation Officer, the settlement arrived at in the conciliation proceedings, duly conducted by him under Section 12, would have been binding on the entire body of the workers including Respondents 4 to 173 represented by the Federation. and others who 'are members of the Sabha. Since the finding of the High Court to the effect that the settlement between the Panchayat and the management cannot be deemed to be settlement arrived at in the course of conciliation proceedings under the Act, now stands unassailed. the aforesaid sub-section (3) cannot be invoked to make it binding on Respondents 4 to 173. The question remains :
Can it be enforced against these Respondents by virtue of sub- section (1) of the Section-. This further narrows down into the issue : Were these respondents parties and signatories to the agreement between the management and the Panchayat - The Page 52 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined answer to this question is undoubtedly in the negative.
14. Even Mr. Malhotra has conceded that at the time when the settlement was arrived at on October 22, 1969, these respondents and the members of the Sabha. were not Parties to it. But his argument is that subsequently by drawing V.D.A. in accordance with the settlement, 99% of the workers have accepted the settlement which, in consequence, would be as effective against them as if they were parties to it.
17. The refusal of the Labour Court to allow the appellant to lead evidence at this stage, has not caused any prejudice to the appellant. The issue decided as a preliminary issue involved a question of law which could be decided on the, basis of material on record. For its it was not necessary to prove that 99% of the workers had accepted the agreement dated October 22, 1969. Even on an assumption of that fact in favour of the Company, the claim before the Labour Court could not be deemed to have been settled qua respondents 4 to 173."
[E] The settlement in the present case is unfair, unjust, unreasonable, fraudulent, based on misrepresentation and concealment of facts and to subvert the award passed by the Industrial Tribunal and hence, the present applicants may be joined as parties as prayed in the Civil Application and may be permitted to contest the petitions in their personal capacity. [F] When the settlement i.e. MOS dated 07.06.2024 is admittedly u/s 18(1) of the Industrial Disputes Act, the present pending proceedings are required to be adjudicated on merits with respect to the challenge of the award passed by the Industrial Tribunal, by this Hon'ble Court and as the applicants Page 53 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined are not at all concerned with the said settlement, there is no purpose of examining the validity of the said settlement by the Industrial Tribunal.
8.3 Lastly, learned advocate Ms.Shah has submitted that, pending these petitions, let this issue be referred to the Industrial Tribunal for its genuineness and legality and after leading the evidence and after examining the witnesses, let the Tribunal pass an appropriate order.
9. In response to the written submissions of learned advocate Ms.Shah, learned Advocate General Mr.Trivedi has submitted the written submissions dated 19.07.2024, stating therein that, the aforesaid 54 Contract Workmen, though being the members of the aforesaid Union, want to be impleaded as parties in their individual capacity, since they do not want align with the Union, which is responsible for arriving at a settlement i.e. MoS dated 07.06.2024 with the Petitioner Company and the Respondent Contractors, during the course of court- assigned mediation, and have submitted their written submissions dated 03.07.2024. In response to the same, learned Advocate General Mr.Trivedi has submitted his written Page 54 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined submissions on behalf of the petitioner Company stating therein as under :
Submission No.1:
(a) That, the settlement in question in the present case, i.e. MoS dated 07.06.2024 has been entered into under Section 2(p) read with Section 18(1) of the Industrial Disputes Act, 1947 ('the ID Act' for short) with the only Union i.e. Bijli Mazdoor Panchayat in the Petitioner Company, representing by the entire Workforce of Contract Workmen employed by various Contractors. The said Union was responsible for raising the industrial dispute originally before the Industrial Tribunal, culminating into Reference (IT) Nos.72 & 103 of 2001. It is very much "the settlement" under the provisions of the ID Act and it is binding upon the parties thereto, which includes the Petitioner Company on one hand and on the other, the abovenamed Union, representing the entire Workforce of 543 Contract Workmen, out of whom about 54 Contract Workmen have now refused to be governed by the said MoS dated 07.06.2024 and all the contractors.Page 55 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024
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(b) That, the settlements under the ID Act can be of two types viz. (i) Settlement arrived at during the course of the conciliation proceedings, which binds all the Workmen, whether or not they are parties to the said settlement, and (ii) Settlement arrived at outside the conciliation proceedings at any point of time, which binds only the parties to the settlement. MoS dated 07.06.2024 in the present case is of 2 nd type.
(c) That, the Judgment relied upon by the minority contract workmen rendered in case of Workmen of Delhi Cloth and General Mills, reported in 1969 (3) SCC 302 - rel. paras - 11, 12, 13 & 14, cannot be made applicable in the present case, inasmuch as in the above-referred judgment, the previous settlement dated 09.06.1965 was found to be not in accordance with Rule 58(4) of the Industrial Disputes (Central) Rules, 1957, since the copies thereof were not sent to the Central Government, Chief Labour Commissioner (Central), New Delhi and the Regional Labour Commissioner, New Delhi. Hence, it was held that the subsequent reference of industrial dispute vide order dated 09.09.1965 made to the Industrial Tribunal, cannot be the foreclosed and consequent Award Page 56 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined dated 17.02.1966 made by the Industrial Tribunal therein, cannot be invalidated, on the strength of such a settlement.
(d) Similarly, reliance placed upon the Judgment of the Hon'ble Supreme Court in case of Brooke Bond (India) Ltd. vs. Workmen, reported in 1981 (3) SCC 493 - rel. paras - 6 & 7, is also misplaced, as the settlement dated 16.03.1978 in the said case arrived at between the employer and the Union, was held to be not legal and valid, since the same was not accepted by the executive committee of the Union, though the same was signed by its office bearers. So is not the position in the present case.
(e) Admittedly, the Applicant Contract Workmen are the members of the Union, i.e. Bijli Mazdoor Panchayat, who were never parties in their individual capacities, in Reference (IT) Nos.72 and 103 of 2001 before the Industrial Tribunal and it is the said Union, which is the only recognized and majority union that has arrived at the MoS dated 07.06.2024 with the Petitioner Company. Therefore, it does not lie in their mouth to allege that the said MoS dated 07.06.2024 is not applicable to them.
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(f) Merely because there is an inadvertent reference of Section 18(3) of the ID Act, instead of Section 18(1) of the ID Act in page-2 of the MoS dated 07.06.2024, in the present case, the said MoS cannot ipso facto, be treated to be mala- fide.
(g) No particular Standing Order has been pointed out to have been violated. Reliance on the judgment of the Hon'ble Supreme Court in case of Bhartiya Kamgar Karmachari Mahasang vs. Jet Airways Ltd., reported in 2023 (10) Scale 251, is totally without substance. In the said judgment, the applicable Standing Order clearly provided that a Workman having completed 240 days of work in a year, should be treated to be the permanent Workman, however, the settlement dated 02.03.2002 entered into in the said case, provided other way round to the effect that such workers are not entitled to permanency. It was in the said context that the Hon'ble Supreme Court held that the parties cannot enter into a contract / settlement, overriding the statutory provisions of the applicable law.
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NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined Submission No.2:
(a) The Union i.e. Bijli Majdoor Panchayat has, on behalf of its all 543 Contract Workmen - members [i.e. 418 in Ref.(IT) No.72 of 2001 and 125 in Ref.(IT) No.103 of 2001], categorically agreed with the Petitioner Company in the said MoS dated 07.06.2024 that none of the said contract -
workmen has similar work profile like any of the permanent employees of the Petitioner Company, in sub-clause-2 of Clause-'B' relating to "Terms and Conditions", the relevant portion whereof is reproduced hereunder:
"B. Terms and Conditions:
1. Absorption:
The parties agree and accept that only those Workmen who are on the Wage Register of the Contractors as on 30.04.2024, and who are listed in Annexure-I to the present MoS, would be absorbed as permanent Workmen into the permanent roll of the Company subject to the terms and conditions of the present MoS with effect from date of the present MoS.
2. Grade / Category of Workmen:
It is agreed that the present Contract Workmen being absorbed do not have similar work profile like the company i.e. GIPCL employees and therefore, the Contract Workmen referred in Annexure-I to the present MoS would be absorbed by the Company and bifurcated in the following grade / category as formulated and would be granted benefits as follows:
Grade Categor Criteria Category
y Agreed by
both the
party
WA1 Skill ITI (Performing Technical Work) A
WB2 Semi Non ITI performing Technical Work B
Skill
WC3 Un Skill Helper, Housekeeping, C
Horticulture, Peon, Sweeper
Performing Un Skill work, Loading /
unloading and such others.
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3. Pay-Scale, Allowances & Benefits:
3.1 It is agreed between the parties that the Contract
Workmen stated in the Annexure-I to the present MoS would be absorbed by the Company as permanent Workmen into the permanent roll of the Company shall be entitled to the following pay-scale, allowances and benefits per month.
xxx xxx xxx." (b) In view of the above, there is no question of placing on
record anything in regard to the salary, allowance and other benefits being available to the permanent employees presently working in the Petitioner Company. It is noteworthy that by MoS dated 07.06.2024, the Petitioner Company is going to implement altogether a new wage structure for all the Contract Workmen - members of the above-named Union.
(c) Under the above circumstances, it is neither legal nor proper to criticize the MoS dated 07.06.2024, as vitiated by fraud and malafide.
Submission No.3:
(a) This submission is full of rhetoric, inasmuch as neither any policy, nor any provisions of the ID Act / Rules, have been pointed out, to which, any of the terms of the MoS dated
07.06.2024 can be said to be contrary. It is not stated as to Page 60 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined how the MoS dated 07.06.2024 does not satisfy the provisions of Section 23 of the Indian Contract Act, 1872, or the same is exploitation of poor contract workmen. Merely because, MoS dated 07.06.2024 does not grant what the Union was originally demanding, the said MoS does not, automatically become an act of exploitation. The ID Act is based on the principles of collective bargaining and in said process, there is always the involvement of 'give & take' philosophy, which can be better explained from the following observations of the Hon'ble Supreme Court in case of Herbertsons Ltd. vs. Workmen, reported in (1976) 4 SCC 736, the relevant observations are as under :
"21. Besides, the settlement has to be considered in the lights of the conditions that were in force at the time of the reference. It will not be correct to judge the settlement merely in the light of the award which was pending appeal before this Court. So far as the parties are concerned there will be uncertainty with regard to the result of the litigation in a court proceeding. When, therefore, negotiations take place which have to be encouraged, particularly between labour and employer in the interest of general peace and well-being, there is always give and take. Having regard to the nature of the dispute, which was raised as far back as 1968, the very fact of the existence of a litigation with regard to the same matter which was bound to take some time must have influenced both the parties to come to some settlement. The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust. (Emphasis supplied) ....
25. There may be several factors that may influence parties to come to a settlement as a phased endeavour in the course of collective bargaining. Once cordiality is established between Page 61 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined the employer and labour in arriving at a settlement which operates well for the period that is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding friction and un- healthy litigation. This is the quintessence of settlement which courts and tribunals should endeavour to encourage. It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinising an award in adjudication. The tribunal fell into an error in invoking the principles that should govern in adjudicating a dispute regarding dearness allowance in judging whether the settlement was just and fair." (Emphasis supplied) Submission No.4:
(a) Reliance on the judgments of the Hon'ble Supreme Court in case of - (i) Barauni Refinery Pragatisheel Shramik Parishad vs. Indian Oil Corporation Ltd., reported in (1991) 1 SCC 4, and (ii) the Jhagrakhan Collieries (P) Ltd.
vs. Shri G.G.Agrawal, reported in (1975) 3 SCC 613, is totally misplaced, since the ratio of the said two judgments is to the effect that the settlement arrived at outside the conciliation proceedings binds only the parties to the settlement as provided under Section 2(P) read with Section 18(1) of the ID Act.
(b) In the present case, all the 543 Contract Workmen, including those 54, on whose behalf Civil Application No. 1 of 2023 is filed, are admittedly the members of the Bijli Mazdoor Panchayat, i.e. the only recognized Union operating in the Petitioner Company. It is this Union, at whose behest the proceeding right from the stage of the commencement of the conciliation proceedings in the matter of industrial disputes which ultimately failed on 14.05.2001 and 12.11.2001, which were thereafter referred to the Industrial Tribunal at Surat in Page 62 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined form of Ref. (IT) No.72 of 2001 and Ref. (IT) No.103 of 2001, resulting in two Awards i.e. (i) Award dated 07.02.2014 qua 418 Contract Workmen and (ii) Award dated 07.02.2024 qua 125 contract workmen, respectively, which were being conducted by this very Union on behalf of all the aforesaid Contract Workmen numbering 543 [418 + 125], including 54 contract workmen, on whose behalf C.A. No.1 of 2023 is filed.
(c) It was this very Union, which challenged the aforesaid two Awards in this Hon'ble Court on behalf of all the 543 contract workmen, by way of two writ petitions i.e. Special Civil Application Nos. 19387 of 2015 and 19388 of 2015.
(d) Thus, the said 54 contract workmen, who are still the members of Bijli Majdoor Panchayat, do not have any separate individual status, independent of the above-named Union. The said proposition is clearly supported by the following observations of the Hon'ble Supreme Court in case of Herbertsons Ltd. (supra). (Emphasis supplied) "18. When a recognised 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 recognised 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 cases where there may be allegations of mala fides, 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 bar-gaining and therefore, is entitled to due weight and consideration. (Emphasis supplied)
(e) The aforesaid dictum was thereafter followed by the Page 63 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined Hon'ble Supreme Court in case of K.C.P. Ltd. vs. Presiding Officer, reported in (1996) 10 SCC 446 (i.e. Judgment No.1 as relied upon by the Petitioner Company), by, inter-alia, observing as under:
"21. ... it could not be held as, wrongly assumed by the Labour Court that this settlement was not entered into under Section 18(1) of the Act by these dissenting workmen when the respondent-Union did represent them from beginning to end and is still representing them as they are members of the Union even at present. In the case of Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal a Bench of three Hon'ble Judges of this Court had an occasion to consider the effect of a settlement entered into by the Union of workmen which had espoused the cause of its members by raising an industrial dispute under Section 2(k) of the Act and the further question whether under these circumstances an individual workman had any independent locus standi in proceedings before the Reference Court. Rejecting the contention on behalf of the individual workman, it was observed by Das Gupta, J. speaking for the Court that the workman concerned was not entitled to separate representation when already represented by the Secretary of the Union which espoused his caused."
(Emphasis supplied)
(f) In light of the aforesaid discussion, C.A.No.1 of 2023, representing 54 Contract Workmen, who do not want to be governed by MoS dated 07.06.2024, lacks merit and hence, deserves to be summarily dismissed.
Submission No.5:
(a) MoS dated 07.06.2024 cannot, by any stretch of imagination, be called unfair, unjust, unreasonable, fraudulent Page 64 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined and based on misrepresentation and concealment of facts to subvert the awards of the Industrial Tribunal. Unfortunately, high sounding expressions with full of sarcasm have been used, without demonstrating as to how each of the said expressions stands proved in the present case. Merely because the benefits under the MoS dated 07.06.2024 seem to be on a lower side as compared to the Awards, the said MoS will not automatically become unfair, unjust, unreasonable, fraudulent and based on misrepresentation and concealment of facts. This aspect of the matter is clearly supported by the following observations of the Hon'ble Supreme Court in para 27 of the judgment in case of K.C.P. Ltd. (supra).
"27. Out of 29 workmen for whom the industrial dispute was raised 17 workmen agreed and accepted this settlement and joined the service. Remaining 12 workmen (Respondents 3 to
14) have not agreed to the said settlement. It is under these circumstances that the settlement arrived at by the Union on behalf of all of them has to be scrutinised. It has clearly transpired on the record of this case that all the 500 workmen excluding 29 dismissed workmen had espoused the cause of these dismissed workmen and had struck the work. Ultimately, when they were reinstated in service leaving aside the 29 workmen for whom industrial dispute lingered on, all the remaining workmen lost their wages from 20-10-1990 to 12-5-
1991 and also from 13-5-1991 to 6-10-1991. They lost their wages because they were expressing sympathy for their 29 colleagues who were facing disciplinary action and even for these 29 workmen Respondent 2 - Union entered into a settlement so that they could be reinstated in service with continuity of service or could walk out from service with Rs.75,000 and other monetary benefits. All that was agreed to by the Union as a condition for reinstatement was that the workmen would give up back wages and had to sign a written undertaking to behave properly in future. In our view there was nothing unreasonable or unfair in these terms of settlement. The relief of reinstatement without back wages Page 65 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined could not be said to be unreasonable as for nearly 12 months all the other workmen lost their back wages only because they supported the cause of these 29 colleagues of theirs and hence there was no reason why the workmen who indulged in the acts of misconduct and who were also to be taken in service should not lose their wages for 12 months. Relief of reinstatement was made available to Respondents 3 to 14 on the same line as it was made available to their 17 remaining colleagues who were covered by the very same settlement and who accepted the relief of settlement without back wages or a lump sum compensation of Rs.75,000 and other monetary benefits in lieu of that. In our view such a package deal entered into by Respondent 2 in the best interest of these workmen could not be said to be unfair or unjust from any angle. On the contrary, if the back wages were given to them, then the remaining workmen against whom there was no disciplinary action or any alleged misconduct and who had also lost wages for 12 months only because they were in sympathy with these 29 dismissed workmen would have stood discriminated against. Consequently, it is not possible to agree with the learned counsel for Respondents 3 to 14 that the said settlement was in any way unfair or unjust. Once this condition is reached it is obvious that the entire industrial dispute should have been disposed of in the light of this settlement and an award in terms of the settlement should have been passed by the first respondent-Court in the case of Respondents 3 to 14 also. Consequently, the judgment and order of the Division Bench of the High Court dated 4-4-1995 and the order of the learned Single Judge dated 29-9-1993 are quashed and set aside. The writ petition filed by the appellant-Company will stand allowed with a direction to the first respondent-Labour Court to pass award in terms of the settlement dated 14- 12-1992 by treating it to be binding on Respondents 3 to 14 also. (Emphasis supplied) Submission No.6:
(a) In view of MoS dated 07.06.2024 having been arrived at between the Petitioner Company, all the Contractors and the Union representing the entire force of 543 Contract Workmen including 54 Contract Workmen - Applicants in C.A. No. 1 of 2023, during the course of court assigned mediation and during the pendency of the captioned writ petitions being SCA Page 66 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined Nos. 5707 and 5712 of 2014 filed by the Petitioner Company and SCA Nos. 19387 and 19388 of 2015 filed by the Union, there is no question of adjudicating upon all the said four writ petitions on merits, as contended, even though the said 54 Contract Workmen - Applicants may not have any concern with the said MoS dated 07.06.2024.
(b) As discussed hereinabove, C.A.No.1 of 2023 filed on behalf of 54 Contract Workmen deserves to be dismissed in limine and both the Awards dated 07.02.2024, rendered by the Industrial Tribunal, Surat in Ref. (IT) No.72 of 2001 and Ref. (IT) No.103 of 2001 and under challenge in the aforesaid writ petitions i.e. SCA Nos.5707 and 5712 of 2014 filed by the Petitioner Company and SCA Nos.19387 and 19388 of 2015 filed by the Union, may be modified in terms of MoS dated 07.06.2024, as was exactly done by the Hon'ble Supreme Court in its Judgment in case of Herbertsons Ltd. (supra), in the following terms:-
"27. It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely out-weighs 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 Page 67 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined 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 elsewhere 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.
28. That being the position, we uphold the settlement as fair and just and order that the award of the tribunal shall be substituted by the settlement dated October 18, 1973. The said settlement shall be the substituted award. The appeal is disposed of accordingly. There will be no order as to costs."
(Emphasis supplied)
(c) In furtherance of the above, as regards the locus standi of the said 54 Contract Workmen - Applicants, the following observations of the Hon'ble Supreme Court in his judgment in case of P. Virudhachalam and Others Versus Management of Lotus Mills and Another reported in (1998)1 SCC 650 - Rel. Paras 6 to 9 (i.e. Judgment no. 3 as relied upon by the Petitioner - Company) "9. It has to be kept in view that the Act is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace. Thus principles of industrial democracy is the bed-rock of the Act. The employer or a class of employers on the one hand and the accredited representatives of the workmen on the other are expected to resolve the industrial dispute amicably as for as possible by entering into the settlement outside the conciliation proceedings of if no settlement is reached and the dispute reaches conciliator even during conciliation proceedings. In all these negotiation based on collective bargaining, individual workman necessarily recedes in background. The reins of bargaining on his behalf is handed over to the union representing such workmen. The unions espouse the common Page 68 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined cause on behalf of all their members. Consequently, settlement arrived at by them with management would bind at least their members and if such settlement is arrived at during conciliation proceedings, it would bind even non-members. .............. Individual workman comes into the picture only in connection with a limited class of industrial disputes as indicated by Section 2A of the Act dealing with discharges, dismissals, retrenchments or otherwise termination of services of an individual workman. Save and except the aforesaid class of disputes, which an individual workman can rest of the industrial disputes including disputes pertaining to illegal lock out, lay-off and lay-off compensation have to be filtered through the process of collective bargaining and they are disputes of general nature or class disputes wherein individual workman by himself has no say. ..............."
(d) As discussed hereinabove, MoS dated 07.06.2024 which seeks to confer various benefits upon the Contract Workmen employed by the Contractors including benefit of absorption in regular employment of the Petitioner Company and accepted by the only recognized and majority Union in the Petitioner Company representing the entire force of Contract Workmen working in the Petitioner Company including 54 Contract Workmen- Applicants in C.A. No. 01 of 2023, is absolutely legal, fair, proper and reasonable and the same cannot, by any stretch of imagination, be considered to be unfair, unjust, unreasonable, fraudulent, illegal, against public policy and based upon misrepresentation and concealment of facts and some ward the awards of the Ld. Industrial Tribunal, in any eventuality. Even whilst assuming without admitting that any of the said evils is present in the instant case, then in that Page 69 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined eventuality, the remedy is available in law, as observed by the Hon'ble Supreme Court in the case of National Engineering Industries Ltd., Versus State of Rajasthan and others reported in (2000) 1 SCC 371 - Rel. Paras 18 & 24 wherein, it was observed as under:-
"24. .........When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication ............."
(e) Thus, as per the settled legal position, as discussed hereinabove, the said 54 Contract Workmen - Applicants in C.A. No. 01 of 2023 must align with the majority view for being governed by the MoS dated 07.06.2024. However, if they so choose, they may raise an independent industrial dispute in this regard and get the same referred to the Labour Court / Industrial Tribunal for adjudication, of course, subject to the rights and contentions of the Petitioner Company. However, in any eventuality, two awards, both dated 07.02.2014 rendered by the Industrial Tribunal, Surat in Ref. (IT) No. 72 of 2001 and Ref. (IT) No. 103 of 2001 and challenged in SCA Nos. 5707 and 5712 of 2014 by the Petitioner Company and also in SCA Nos. 19387 and 19388 of 2015 filed by the Union, may forthwith be Page 70 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined modified in terms of MoS dated 07.06.2024 arrived at between the Petitioner Company, the Contractors and the recognized majority Union representing the entire force of Contract Workmen, employed by the Contractors, during the course of court-assigned mediation, by allowing all the aforesaid petitions to that extent.
10. Heard learned advocates appearing for the respective parties and perused the material placed on record.
11. With regard to the contentions raised by the learned advocate Ms.Shah that the settlement agreement is not in consonance with the provisions of Bombay Industrial Employment (Standing Orders) Rules, 1959 and Industrial Employment (Standing Orders) Act, 1946, the Court had raised query as to how it is not in consonance with the provisions of said Rules and Act, the learned advocate Ms.Shah was unable to answer as to whether there is any breach of the provisions of the said Rules and Act. Since she has objected this 2(P) settlement but, she has emphasized that the matters may be remanded back to the Industrial Tribunal for the purpose of legality and validity of the settlement agreement, which was in Page 71 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined presence of the mediator appointed by this Court as to whether any clause incorporated in the settlement agreement is in violation of the provisions of the said Rules and Act. Therefore, this Court is of the opinion that the present petitions deserve to be allowed in light of the settlement agreement by and between the petitioner Company and the Union representing almost 543 workmen and it is causing great prejudice to those as the larger portion of the workmen who have entered into the settlement through Union and have accepted the terms and conditions of the said settlement and therefore, this Court is of the opinion that instead of remitting the matters back to the Industrial Tribunal, the petitions be allowed in terms of the settlement arrived at by and between the parties and as per clause 15 enumerated in the said settlement agreement, if the 54 workmen objecting the said settlement agreement are also entitled to all the consequential benefits, if they are agree upon the terms and conditions of the settlement agreement, then the same be extended in their favour without any grudge. The respondent Union representing majority of workmen have stood by this settlement and have agreed to the terms and conditions, which is to be considered as a strong factor and which cannot be ignored. Page 72 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024
NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined 11.1 This act is a benevolent act and by means of this settlement if the workmen agree and act upon the said settlement with the employer, it would be in the interest of internal peace and harmony when a Union backed by a large majority of workmen has accepted the settlement in the course of collective bargaining have impelled this Court not to interfere with this settlement. It would be fruitful to refer to section 12 of the Industrial Disputes Act, 1947, wherein, complete process for the settlement has been provided, which reads as under :
"12. Duties of conciliation officers:- (1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner.
(2) The Conciliation Officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government 5[or an officer authorised in this behalf by the appropriate Government] together with a memorandum of the settlement signed by the parties to the dispute. (4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to Page 73 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024 NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, 1[Labour Court, Tribunal or National Tribunal],it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. (6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government.
[Provided that, 3[subject to the approval of the conciliation officer] the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute].
11.2 Section 18(1)(2)(3) reads as under :
18. Persons on whom settlements and awards are binding.-
(1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.
(2) Subject to the provisions of sub-section (3), an arbitration award] which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration.] (3) A settlement arrived at in the course of conciliation proceedings under this Act 5[or an arbitration award in a case where a notification has been issued under sub-section (3A) of Section 10A] or 6[an award 7[of a Labour Court, Tribunal or National Tribunal] which has become enforceable] shall be binding on-
(a) all parties to the industrial dispute;Page 74 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024
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(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, [arbitrator,] [Labour Court, Tribunal or National Tribunal], as the case may be, records the opinion that they were so summoned without proper cause;
(c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;
(d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.
12. After considering the contents of the 2(P) settlement arrived at by and between the parties and the relevant sections of the Industrial Disputes Act, 1947 as above and the submissions advanced by both the sides and the decisions cited a the Bar, the petitions are hereby allowed and the impugned awards both dated 07.02.2014 passed by the learned Industrial Tribunal, Surat, in Reference (IT) Nos.72 of 2001 and 103 of 2001 are hereby modified to the extent in terms of the conditions enumerated in the settlement agreement, which is incorporated in this order as a part and parcel of this order. The impugned awards are substituted by the settlement dated 07.06.2024. The said settlement shall be the substituted award. The petitions are disposed of accordingly. No order as to costs.
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NEUTRAL CITATION C/SCA/5707/2014 JUDGMENT DATED: 30/07/2024 undefined 12.1 It is open for the descending group of 54 workmen to approach the concerned Labour Court by agitating the grievance against the settlement or by way of filing a reference afresh, which shall be considered by the concerned Labour Court in accordance with law without being influenced by this order.
13. In view of the disposal of the main petitions, the pending civil applications also stand disposed of.
FURTHER ORDER
Today, when the matters were taken up for
pronouncement of the judgment/orders, Office has produced a report dated 01.07.2024 received from the Gujarat High Court Mediation Center that so far as the mediation qua other group of workmen is concerned, the same has been unsuccessful. The report dated 01.07.2024 is taken on record.
(HEMANT M. PRACHCHHAK,J) Dolly Page 76 of 76 Downloaded on : Tue Jul 30 22:54:56 IST 2024