Karnataka High Court
The General Secretary vs The Management Of M/S Hindalco ... on 25 July, 2023
Author: S.G. Pandit
Bench: S.G. Pandit
WA No. 100325/2022 C/W
WA. No. 100235/2022 &
CCC No. 100109/2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT APPEAL No.100325/2022 (L-RES)
C/W
JAGADISH WRIT APPEAL No.100235/2022 (L-RES)
TR CIVIL CONTEMPT PETITION No.100109/2023
Digitally signed by
JAGADISH T R
Location: DHARWAD
IN WA. No. 100325/2022
Date: 2023.07.28
15:40:05 -0700 BETWEEN
THE MANAGEMENT OF HINDALCO
INDUSTRIES LTD., YAMUNAPURA,
BELAGAVI-590 010.
REPRESENTED BY ITS
AUTHORIZED SIGNATORY/CONSTITUTED
POWER OF ATTORNEY HOLDER
MR. KRISHNARAJU KUMARAVEL.
...APPELLANT
(BY SRI. ADITYA SONDHI, SENIOR ADVOCATE FOR
SRI. GANGADHAR S. HOSAKERI, ADVOCATE)
AND
1. GENERAL SECRETARY,
INDAL EMPLOYEES' UNION,
J-1, INDAL COLONY, HINDALCO INDUSTRIES LTD.,
BELAGAVI-590010.
2. GENERAL SECRETARY,
THE INDIAN ALUMINIUM COMPANY
WORKERS' UNION, J-5, INDAL COLONY,
HINDALCO INDUSTRIES LTD.,
WA No.100325/2022 C/W
2 WA No.100235/2022 &
CCC No.100109/2023
BELAGAVI-590010.
3. GENERAL SECRETARY,
THE INDIAN ALUMINIUM COMPANY
STAFF UNION, HINDALCO INDUSTRIES LTD.,
BELAGAVI-590010.
4. ADDITIONAL LABOUR COMMISSIONER,
(INDUSTRIAL RELATION) & APPELLATE AUTHORITY
UNDER THE INDUSTRIAL EMPLOYMENT,
(STANDING ORDERS) ACT,1946,
KARMIKA BHAVANA, BANNERGHATTA ROAD,
BENGALURU-560 029.
...RESPONDENTS
(BY SRI. S.L. MATTI, ADVOCATE FOR C/R1 AND R2)
(SRI. V.S. KALASURMATH, HCGP FOR R4)
(NOTICE TO R3 IS SERVED)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961 READ OF WITH ARTICLE 226 OF CONSTITUTION OF
INDIA, PRAYING TO SET ASIDE FINAL ORDER DATED 21.04.2022
PASSED BY LEARNED SINGLE JUDGE IN W.P.NO.119764/2020 AND
ALLOW WRIT PETITION IN THE INTEREST OF JUSTICE AND EQUITY.
IN WA. No. 100235/2022
BETWEEN
1. THE GENERAL SECRETARY,
INDAL EMPLOYEES UNION,
J-1, INDAL COLONY, HINDALCO INDUSTRIES LTD.,
BELAGAVI-590010.
2. THE GENERAL SECRETARY,
THE INDIAN ALUMINIUM COMPANY
WORKERS' UNION, J-5, INDAL COLONY,
HINDALCO INDUSTRIES LTD., BELAGAVI-590010.
... APPELLANTS
(BY SRI. S.L. MATTI, ADVOCATE)
WA No.100325/2022 C/W
3 WA No.100235/2022 &
CCC No.100109/2023
AND
1. THE MANAGEMENT OF
M/S HINDALCO INDUSTRIES LTD.,
YAMUNAPUR, BELAGAVI.
R/BY ITS JOINT PRESIDENT UNIT HEAD,
SRI. K. KUMARVELU, BELAGAVI-590010.
2. THE GENERAL SECRETARY,
THE INDIAN ALUMINIUM COMPANY,
STAFF UNION, J-5, INDAL COLONY,
HINDALCO INDUSTRIES LTD.,
BELAGAVI-590010.
3. THE ADDL. LABOUR COMMISSIONER,
(INDUSTRIAL RELATION),
AND APPELLATE AUTHORITY UNDER THE INDUSTRIAL
EMPLOYMENT (STANDING ORDERS) ACT, 1946,
KARMIKA BHAVAN, BANNERGHATTA ROAD,
BENGALURU-560029.
...RESPONDENTS
(BY SRI. ADITYA SONDHI, SENIOR ADVOCATE AND
SRI. GANGADHAR S. HOSAKERI, ADVOCATE FOR R1)
(SRI. V.S. KALASURMATH, HCGP FOR R3)
(NOTICE TO R2 IS DISPENSED WITH)
THIS WRIT APPEAL IS FILED U/S.4 OF THE KARNATAKA HIGH
COURT ACT, 1961, R/W ARTICLE 226 OF THE CONSTITUTION OF
INDIA, PRAYING TO, THIS HON'BLE COURT BE PLEASED TO MODIFY
THE ORDER PORTION AT (A) PASSED BY THE LEARNED SINGLE JUDGE
IN WRIT PETITION NO. 119764/2020 (L-RES) DATED 21/04/2022 AS
THE WORKMEN ARE ENTITLED TO MONETARY BENEFITS WHO ARE
RETIRED FROM THE SERVICE AFTER ATTAINING THE AGE OF 58
YEARS FROM THE DATE OF ORDER PASSED BY THE CERTIFYING
OFFICER I.E. 31/07/2018 TILL THE DATE OF ORDER PASSED BY THE
APPELLATE AUTHORITY I.E. 05/12/2019 AS IF THEY HAD CONTINUED
WA No.100325/2022 C/W
4 WA No.100235/2022 &
CCC No.100109/2023
IN EMPLOYMENT TILL THEY ATTAINED THE AGE OF 60 YEARS, IN THE
ENDS OF JUSTICE AND EQUITY.
IN CCC. NO. 100109/2023
BETWEEN
THE GENERAL SECRETARY,
INDAL EMPLOYEES UNION, J-1, INDAL COLONY,
HINDALCO INDUSTRIES LTD.,
BELAGAVI-590 010.
R/BY ITS GENERAL SECRETARY,
SRI. BHIMARAO S/O. NEELAPPA KARENNAVAR,
AGE: 39 YEARS, OCC: EMPLOYEE IN INDALCO INDUSTRIES,
R/O: HINDALCO INDUSTRIES LTD., BELAGAVI-590 010.
...COMPLAINANT
(BY SRI. S.L. MATTI, ADVOCATE)
AND
VISHWAS BABURAO SHINDE,
AGE: 51 YEARS, OCC: VICE-PRESIDENT (HR),
IN THE MANAGEMENT OF HINDALCO INDUSTRIES LTD.,
BELAGAVI-590 010.
...ACCUSED
(BY SRI. ADITYA SONDHI, SENIOR ADVOCATE AND
SRI. GANGADHAR S. HOSAKERI, ADVOCATE)
THIS CCC IS FILED UNDER SECTION 11 AND 12 OF THE
CONTEMPT OF COURTS ACT, 1971, R/W. ARTICLE 215 OF
CONSTITUTION OF INDIA,1950, PLEASED TO, INITIATE THE
CONTEMPT PROCEEDING AGAINST THE ACCUSED/MANAGEMENT AND
TO PUNISH HIM IN ACCORDANCE WITH THE LAW AS THE ACCUSED
MANAGEMENT HAS DISOBEYED AN ORDER PASSED BY LEARNED
SINGLE JUDGE OF THIS HON'BLE COURT IN WRIT PETITION
NO.119764/2020 (L-RES) DATED 21/04/2022 VIDE ANNEXURE-A, IN
THE ENDS OF JUSTICE AND EQUITY.
THESE WRIT APPEALS AND CONTEMPT PETITION HAVING
BEEN HEARD & RESERVED ON 28.06.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY S.G.PANDIT J.,
DELIVERED THE FOLLOWING:
WA No.100325/2022 C/W
5 WA No.100235/2022 &
CCC No.100109/2023
JUDGMENT
This intra-Court appeal (WA No.100325/2022) is filed under Section 4 of the Karnataka High Court Act, 1961 questioning the correctness and legality of learned Single Judge's order dated 21.04.2022 passed in WP No.119764/2020, dismissing the writ petition filed by the appellant/petitioner challenging the orders dated 31.07.2018 and 5.12.2019 passed by the Certifying Officer as well as the Addl. Labour Commissioner and Appellate Authority respectively under the provisions of Industrial Employment (Standing Orders) Act, 1946 (for short, 'IESO Act') in SOA/CR-08/2018-19, permitting an amendment to Standing Orders of the petitioner/Company to increase the age of retirement from 58 years to 60 years.
2. WA No.100235/2022 is filed by the Workers Union to give effect to the order of Certifying Officer dated 31.07.2018 and to extend the benefit to the workmen retired from the said date.
WA No.100325/2022 C/W 6 WA No.100235/2022 & CCC No.100109/2023
3. CCC No.100109/2023 is filed by respondent No.1/Workers Union complaining disobedience of the order dated 21.04.2022 passed by this Court in WP No.119764/2020.
4. Brief facts leading to present appeals are that, the workmen of the petitioner/company are governed by Certified Standing Orders (for short' CSO') certified under Section 5 of the IESO Act, vide Annexure-A. CSO was approved and is in force w.e.f. 31.05.1971. Clause-26 of CSO provides for superannuation and it states that every workman shall retire from service on attaining the age of 58 years. The appellant/Management and the respondents/Workers Union are also governed by settlement entered into between them from time to time. The settlement between the appellant/Management and respondents/Workers Union is binding on both the parties as contemplated under Section 18(3) of the Industrial Disputes Act, 1947 (for short, 'Act, 1947').
WA No.100325/2022 C/W 7 WA No.100235/2022 & CCC No.100109/2023
5. It is stated that the Karnataka Industrial Employment (Standing Orders) Rules 1961 (for short, '1961, Rules') and Model Standing Order (for short 'MSO') provided age of superannuation at 58 years and the same was amended by Karnataka Industrial Employment (Standing Orders) (Amendment) Rules, 2017 (for short, 'Rules, 2017') and also amendment to MSO was brought in, to increase the age of superannuation from 58 years to 60 years.
6. The settlement between the appellant/Company and respondents/Union was to come to an end on 28.02.2017. As such, on 6.10.2016 and 1.12.2016, respondents No.1 to 3/Workers Union presented their Charter of Demands to the appellant/Management and requested to initiate negotiation for settlement. In the Charter of Demands, the respondents/Workers Union specifically sought for increase of age of superannuation from 58 years to 60 years. After negotiation and conciliation, the appellant/Management and respondents/Workers Union entered into settlement under Section 12(3) of the Act, 1947 before the Deputy Labour WA No.100325/2022 C/W 8 WA No.100235/2022 & CCC No.100109/2023 Commissioner and Conciliation Officer, Belagavi. Settlement was effective from 1.3.2017 till 31.05.2020 for a period of 39 months. In the Settlement, the demand of the Workers Union to enhance the age of superannuation was not acceded to and it remained as 58 years.
7. It is the case of the appellant/Management that the Settlement was in full and final settlement of demands contained in the Charter of Demands and Workers Union could not raise any demand, which would have financial implication during the settlement period. It is stated that after expiry of six months from the date of entering into settlement on 14.3.2018, respondents/Workers Union submitted an application to the Deputy Labour Commissioner and Certifying Officer seeking modification of Clause 26 of CSO to increase the age of retirement from 58 years to 60 years. The Certifying Officer by order dated 31.07.2018 permitted amendment to CSO, which was challenged by the appellant/Management before the Appellate Authority under Section 6 of the IESO Act. The Appellate Authority by order WA No.100325/2022 C/W 9 WA No.100235/2022 & CCC No.100109/2023 dated 5.12.2019 upheld the order of Certifying Officer dated 31.07.2018. Both orders of Certifying Officer dated 31.07.2018 as well as order of the Appellate Authority dated 5.12.2019 were challenged before the learned Single Judge in WP No.119764/2020. The learned Single Judge under impugned order dated 21.04.2022 dismissed the writ petition. Against which, present writ appeals are filed by both the Management as well as Workers Union.
8. Heard the learned Senior Counsel Sri. Aditya Sondhi appearing on behalf of Sri.Gangadhar S Hosakeri, learned counsel for the appellant/Management, Sri. S.L. Matti, learned counsel for respondents No.1 & 2/Workers Union and learned HCGP Sri. V.S. Kalasurmath for respondent No.3/State and perused the writ appeal papers as well as case laws referred to by the learned counsel for the respective parties.
9. Learned Senior Counsel Sri. Aditya Sondhi appearing on behalf of Sri.Gangadhar S Hosakeri, learned WA No.100325/2022 C/W 10 WA No.100235/2022 & CCC No.100109/2023 counsel for the appellant/Management would submit that impugned order passed by learned Single Judge is contrary to law and material on record. Learned Senior Counsel would contend that when the Workers and Workers Union are bound by the settlement between the Appellant/Management and Workers Union under Section 18(3) of the Act, 1947, during the period of settlement for 39 months, respondents/ Workers Union could not have approached the Certifying Officer under Section 10 of the IESO Act for amendment of CSO to increase the age of superannuation from 58 years to 60 years. Learned Senior Counsel would submit that CSO governing service conditions of workers of the appellant/Management came into force on 31.05.1971 and it provided for age of superannuation at 58 years as provided under 1961 Rules.
10. Learned Senior Counsel invited attention of this Court to amendment to 1961 Rules, to amend Rule 15-A, increasing the age of superannuation from 58 years to 60 years and consequential amendment to MSO in respect of age of superannuation. Learned Senior Counsel submits that as WA No.100325/2022 C/W 11 WA No.100235/2022 & CCC No.100109/2023 on the date of entering into settlement, Rule 15-A of 1961 Rules by amendment had increased the age of superannuation from 58 years to 60 years and Workers Union was aware of increase in the age of superannuation. But the Workers Union accepted the age of superannuation at 58 years and signed the settlement. Therefore, it is his submission that during the currency of present settlement, it is not open for the workers or workers union to seek for amendment of CSO insofar as age of superannuation is concerned. Learned Senior Counsel submitted that there was no dispute with regard to settlement and in the absence of any dispute, settlement would be binding on the appellant/Management as well as respondents/Workers Union. Therefore, he submits that when settlement is arrived at between the Management and Workers Union, such settlement is a package deal, in such settlement, some demands may be left out and such left out demands need not be specifically mentioned in the settlement. It is submitted that it is not the case of the respondents/Workers Union that settlement arrived at WA No.100325/2022 C/W 12 WA No.100235/2022 & CCC No.100109/2023 between the appellant/Management and Workers Union is unfair and unreasonable. In that regard, learned Senior Counsel places reliance on a decision of the Hon'ble Apex Court in the case of National Engineering Industries Ltd. Vs. State of Rajasthan & Others1.
11. Learned Senior Counsel referring to Clauses-71 and 72 of the Settlement (Annexure-D) would submit that the parties to the agreement have agreed that settlement is in full and final settlement of the demands contained in the Charter of Demands and further agreed that there shall be no demand for any further increase in wages/salary or allowances or bonus or any financial or non-financial benefits. It is submitted that when the agreement would state that there would be no demand of financial or non-financial benefits, Workers Union during the validity of the settlement could not make or demand for increase in the age of superannuation, which would have financial implication. 1 (2000) 1 SCC 371 WA No.100325/2022 C/W 13 WA No.100235/2022 & CCC No.100109/2023
12. Learned Senior Counsel places much reliance on a decision of the Hon'ble Apex Court in Barauni Refinery Pragatisheela Shramik Parishad Vs. Indian Oil Corporation Limited & others2 and submits that the facts in Barauni Refinery's case supra and the facts in the present case are identical. He submits that in Barauni Refinery's case, settlement did not make any specific mention about the age of retirement, but the Hon'ble Apex Court observed that the Charter of Demands contained several matters touching the conditions of service including the one concerning upward revision of the age of retirement, but after deliberations, certain conditions were altered while in respect of others, no change was necessary including the age of retirement. In the circumstance, the Hon'ble Apex Court held that it would not be open for the workers to demand for increase in the age of superannuation during the period of settlement. Learned Senior Counsel would submit that the learned Single Judge misdirected himself while comparing Clauses-71 and 72 in the 2 1991 (1) SCC 4 WA No.100325/2022 C/W 14 WA No.100235/2022 & CCC No.100109/2023 settlement of the instant case with the Clauses-19 and 21 contained in Barauni Refinery's case. He submits that both the clauses contained in the instant case as well as in Barauni Refinery's case are identical. Therefore, he submits that the present appeal filed by the Management needs to be disposed off in terms of Barauni Refinery's case supra.
13. Learned Senior Counsel would submit that the learned Single Judge differentiated Barauni Refinery's case stating that in Barauni Refinery's case, employer had clearly agreed that they would not change terms and conditions of service and the workmen had categorically agreed that they would not raise any demand, which had a financial burden on the employer. Learned Senior Counsel referring to Clause-71 in the instant case would submit that Clause-71 is also similar to Clause-21 in Barauni Refinery's case, which would make it clear that the parties have agreed that there would be no demand for any further increase in the wages/salary or allowances or bonus or any other financial or non-financial benefits. Thus, he submits that the learned Single Judge was WA No.100325/2022 C/W 15 WA No.100235/2022 & CCC No.100109/2023 not right in saying that the clauses in the Settlement in the present case and clauses in Barauni Refinery's case are different.
14. Learned Senior Counsel referring to a decision of co-ordinate Bench of this Court in the case of M/s. Grasim Industries Ltd. Vs. General Secretary, Harihar Polyfibers Employees Union3, wherein the order of Certifying Officer increasing the age of superannuation to 60 years is upheld, submits that decision of co-ordinate Bench of this Court would not refer to Barauni Refinery's case and it has proceeded to pass judgment placing reliance on a decision rendered in Federal Mogul Goetze India Pvt. Ltd. Vs. Addl. Labour Commissioner (Administration) & Appellate Authority4. Learned Senior Counsel submits that the above decision in Federal Mogul's case supra would indicate that there was no Standing Order relating to the age of retirement in the said establishment. In the said 3 WA No.100250/2021, dated 5.7.2022 4 WA No.2771/2019, dated 25.2.2021 WA No.100325/2022 C/W 16 WA No.100235/2022 & CCC No.100109/2023 background, another co-ordinate Bench of this Court proceeded to uphold increasing the age of retirement at 60 years.
15. Learned Senior Counsel would submit that another co-ordinate Bench of this Court in the case of Rajashree Cement General Workers & Staff Union Vs. M/s. Ultratech Cement Limited5 in an identical fact situation, placing reliance on the decision of Baruani Refinery's case held that the workers could not have moved the Certifying Officer within agreement period, on the ground that Government of Karnataka has brought an amendment to MSO in the year 2017 increasing the age of retirement from 58 years to 60 years. Thus, learned Senior Counsel requests this Court to allow the appeal filed by the Management following the decision of the Hon'ble Apex Court in Barauni Refinery's case (supra) and decision of co-ordinate Bench of this Court in Rajashree Cement's case (supra).
5 WA No.200010/2022, dated 13.07.2022 WA No.100325/2022 C/W 17 WA No.100235/2022 & CCC No.100109/2023
16. Per contra, Sri.S.L.Matti, learned counsel appearing for the respondents/Workers Union supports the impugned order of learned Single Judge as well as order passed by the Certifying Officer and the Appellate Authority, wherein Certifying Officer allowed amendment to the clause containing the age of superannuation to increase from 58 years to 60 years, which was confirmed by the Appellate Authority as well as learned Single Judge. Learned counsel Sri. S.L. Matti would submit that in the CSO of the appellant/Management, retirement age was at 58 years and as there was amendment to 1961 Rules increasing the age of superannuation from 58 to 60 years in the MSO, it became necessary for the respondents/Workers Union to approach the Certifying Officer seeking amendment of age of retirement by filing an application under Section 10(2) of the IESO Act. He submits that the CSO of the appellant/Management shall be inconsonance with MSO, and CSO cannot be contrary to MSO. He submits that the management had failed to take or file objections before the Certifying Officer or before the Appellate WA No.100325/2022 C/W 18 WA No.100235/2022 & CCC No.100109/2023 Authority stating that during the period of settlement, amendment of any of the clauses of settlement is impermissible. Thus, he submits that in the absence of any pleadings, it is not open for the appellant/Management to contend that during the period of settlement, it is not open for the Workers Union to seek amendment in the age of retirement.
17. Learned counsel Sri. S.L. Matti would further submit that the Charter of Demands of respondents/Workers Union contained demand to increase the age of superannuation from 58 to 60 years, but the same was not specifically turned down so as to raise any dispute. In the said circumstance, Workers Union approached the Certifying Officer to amend CSO in respect of age of superannuation. Further, learned counsel S.L. Matti would submit that when an application is made under Section 10(2) of the IESO Act, if Certifying Officer finds a particular clause is unfair and unreasonable, he could permit modification/amendment of such clause in the MSO. It is submitted that having found WA No.100325/2022 C/W 19 WA No.100235/2022 & CCC No.100109/2023 unfair and unreasonableness in the clause relating to the age of superannuation, Certifying Officer permitted the amendment to increase the age of superannuation from 58 to 60 years. Thus, he justifies the order of the Certifying Officer as well as the Appellate Authority.
18. Learned counsel Sri. S.L. Matti places reliance on a decision of this Court in M/s. Grasim Industries Limited's case supra as well as Federal Mogul's case supra to contend that decision of Barauni Refinery's case would have no application to the facts of the present case and to contend that settlement between the Management and Workmen would not be an embargo to Certifying Officer under the provisions of IESO Act to certify the amendment. Learned counsel would further submit that the decision of Barauni Refinery's case would have no application to the facts of the present case, since in the instant case, CSO was in vogue since 1971 and an amendment of MSO in terms of 1961 Rules necessitated the respondents/Workers Union to file an application for amendment of clause relating to the age of WA No.100325/2022 C/W 20 WA No.100235/2022 & CCC No.100109/2023 superannuation. Thus, he prays for dismissal of the appeal filed by the Management and to allow the appeal filed by the respondents/Workers Union to give effect to the order of Certifying Officer dated 31.07.2018 and to extend the benefit to the workmen retired from the said date.
19. Having heard the learned counsel for the parties and on careful perusal of the writ appeal papers and the decisions referred to by respective counsel, the following point would arise for consideration:
Whether impugned order passed by the learned Single Judge requires interference at the hands of this Court?
20. Our answer to the above point would be in the affirmative and impugned order passed by the learned Single Judge requires interference for the following reasons:.
21. Learned Single Judge while dismissing the writ petition observed that the Certifying Authority is required to examine whether Standing Orders are fair and reasonable or in accordance with the provisions of the IESO Act. Further WA No.100325/2022 C/W 21 WA No.100235/2022 & CCC No.100109/2023 learned Single Judge has categorically held that decision of the Hon'ble Apex Court in the case of Barauni Refinery (supra) relied upon by the appellant/Management would have no application to the facts of the present case comparing clauses in both Barauni Refinery's case (supra) as well as clauses contained in the settlement arrived at by the appellant/Management and Workers Union.
22. It is not in dispute that the CSO approved on 31.05.1971 governed the service conditions of workers and Workers Union of the appellant/Management. Clause-26 of CSO governing the respondents/Workers Union reads as under:
"Every workmen shall retire from service on attaining the age of 58 years."
23. The said clause was in vogue from the date of approval of CSO i.e. 31.05.1971. The appellant/Management and respondents/Workers Union had entered into settlement in terms of Sections 12(3) and 18(3) of the Act, 1947. There is no doubt that settlement entered into between the parties WA No.100325/2022 C/W 22 WA No.100235/2022 & CCC No.100109/2023 under the provisions of Act, 1947 would be binding on all the parties in terms of Section 18(3) of the Act, 1947. The appellant/Management and the respondents/Workers Union entered into settlement in terms of Sections 12(3) and 18(3) of the Act, 1947 before the Conciliation Officer on 20.09.2017. The Charter of Demands placed by respondents/Workers Union on 6.10.2016 contained demand for increase in the age of retirement from 58 to 60 years. In the meanwhile, the Government of Karnataka by Notification dated 27.03.2017 amended Rule 15-A of 1961 Rules and MSO to increase the age of superannuation from 58 to 60 years.
24. It is pertinent to note here itself that the settlement was signed between the parties before the Conciliation Officer on 20.09.2017, subsequent to the amendment to 1961 Rules to increase the age of superannuation from 58 years to 60 years. As on the date of signing the settlement, MSO was amended to increase the age of superannuation from 58 years to 60 years. The Charter of Demands with regard to increase in the age of retirement WA No.100325/2022 C/W 23 WA No.100235/2022 & CCC No.100109/2023 from 58 to 60 years was not acceded to or is not accepted and deemed to have been rejected.
25. The Hon'ble Apex Court in the case of National Engineering Industries Ltd. supra has observed that when a settlement is arrived at during the conciliation proceedings, it is binding on the members of Workers Union as laid down by Section 18(3)(d) of the Act 1947. It would ipso fact bind all the existing workmen who are all parties to the industrial dispute and who may not be members of unions that are signatories to such settlement under Section 12(3) of the Act, 1947. Further, it is observed that settlements will encompass all the disputes existing at the time of the settlement except those specifically left out. In Paragraph-27, the Hon'ble Apex Court has observed that when such a settlement is arrived at it is a package deal. In such a deal, some demands may be left out. It is not that demands, which are left out, should be specifically mentioned in the settlement.
26. Clause-71 and 72 of the Settlement in the case on hand reads as under:
WA No.100325/2022 C/W 24 WA No.100235/2022 & CCC No.100109/2023
71. It is agreed that this settlement is full and final settlement of the demands contained in the Charter of Demands submitted by Indal Employees Union, Indian Aluminium Company Worker's Union and Indian Aluminium Company Staff Union, Belagavi on 6.10.2016 respectively and proposals including amendment if any put-forth by the Management on 2.1.2017.
72. It is agreed that there shall be no demand for any further increase in wages/salary, allowances or bonus or any other financial or non-financial benefit and that the provisions of this settlement fully define and limit the obligations and responsibilities of Management for the period covered by this Settlement.
27. On careful reading of the above two clauses, it emerges that the settlement between the parties is in full and final settlement of the demands contained in the Charter of Demands submitted by the Employees' Union. It is also agreed between the parties that there shall be no demand for any further increase in wages/salary, allowances or bonus or any other financial or non-financial benefits. In other words, workers or Workers Union could not make any demand, which would have financial implication. Admittedly, the Charter of WA No.100325/2022 C/W 25 WA No.100235/2022 & CCC No.100109/2023 Demands had contained the demand for increase in the age of superannuation, but the same is not accepted, which was agreed by the Workers Union and signed the Settlement. In other words, the Workers Union has given up the claim for increase of age of superannuation from 58 years to 60 years. Settlement is for a period of 39 months from 1.3.2017 to 31.05.2020 and during the currency of settlement, it is not open for the respondents/Workers Union to demand for increase in the age of superannuation.
28. Under Section 10(2) of the IESO Act, an employer or workmen or a trade union or other representative body of the workmen may apply to Certifying Officer to have CSO modified. But Rule 15-A of 1961 Rules makes it clear that the retirement or superannuation of workman may be 60 years or such other age as may be agreed upon between the employer and the workman by any agreement, settlement or award which may be binding on the employer and the workman under any law for the time being in force. In the instant case, by agreement or settlement, parties have agreed that the age WA No.100325/2022 C/W 26 WA No.100235/2022 & CCC No.100109/2023 of superannuation shall be 58 years and demand for increase in the age of superannuation from 58 years to 60 years is rejected. In view of Rule 15-A of 1961 Rules, it is not open for either of the parties to seek amendment to the superannuation clause during the period of settlement.
29. Much reliance was placed by learned Senior Counsel for appellant to contend that decision in Barauni Refinery's case would squarely applicable to the facts of the present case. We have carefully gone through the decision of the Hon'ble Apex Court in Barauni Refinery's case supra.
30. It is seen that in Barauni Refinery's case, CSO was in force from 5.12.1964 and Clause-20 of the said Standing Orders provided for age of retirement at 58 years. The workers' union in Barauni Refinery's case submitted the Charter of Demands, which also included demand to enhance the age of superannuation to 60 years. In respect of Charter of Demands, meetings were held between the Management of IOCL and recognized unions and settlement mutually arrived WA No.100325/2022 C/W 27 WA No.100235/2022 & CCC No.100109/2023 at between the parties was signed on 24.05.1983. Clauses-19 and 21 of the settlement in Barauni Refinery's case reads as follows:
19. The Corporation agrees that such terms and conditions of service as well as amenities and allowances as are not changed under this settlement shall remain unchanged and operative during the period of settlement.
21. The Unions agree that during the period of operation of this settlement, they shall not raise any demand having financial burden on the Corporation other than bonus provided that this Clause shall not affect the rights and obligations of the parties in regard to matters covered under Section 9A of the Industrial Disputes Act, 1947.
31. The said settlement in Barauni Refinery's case was to remain in force from 1.5.1982 to 30.04.1986. With regard to demand for upward revision of the age of superannuation, no specific provision was made in that behalf. Further, in terms of Clause-19, settlement was to remain unchanged and operative during the period of settlement. In the said circumstance, one of the Unions moved an application under Section 10(2) of the IESO Act for modification of Clause-20 to increase the age of superannuation from 58 to 60 years by amending the relevant Standing Orders. The said WA No.100325/2022 C/W 28 WA No.100235/2022 & CCC No.100109/2023 application was allowed and by modification, the age of superannuation was enhanced from 58 to 60 years by the Certifying Officer. Against which, Barauni Refinery filed statutory appeal before the Appellate Authority and the said appeal came to be dismissed with a slight modification. Against which, both Barauni Refinery as well as Workers' Union filed writ petition before the High Court. In the writ petition, one of the questions was, whether settlement arrived at under Sections 18(3) and 19(2) of the Act, 1947 between the petitioner and the workmen represented by their recognized majority union and which settlement was in force when impugned orders were made, had put any bar on the rights of the workmen to approach the authorities under the said Act for seeking modification of the Standing Orders with regard to the fixation of the age of superannuation of the workmen? The High Court concluded that settlement arrived at in conciliation proceedings is binding on the workmen and it was not permissible to modify the CSO by amendment, as that would alter the service condition and increase the WA No.100325/2022 C/W 29 WA No.100235/2022 & CCC No.100109/2023 financial burden on the Management. The said order of the High Court was taken up in appeal to the Hon'ble Apex Court. The Hon'ble Apex Court specifically held that during the operation of settlement, it was not open for the workmen to demand a change in Clause 20 of the CSO because any upward revision of the age of superannuation would come in conflict with Clauses-19 and 21 of the settlement.
32. Paragraphs-6 to 10 of the judgment in Barauni Refinery's case reads as under:
6. While hearing these two writ petitions the High Court for umlauted two points for consideration, namely, (i) "Whether the Certifying Authority under the Standing Orders Act has the jurisdiction to entertain an application for amendment of a Standing Order which fixes the age of retirement of the workmen as 58 years which Is in consonance with the model Standing Order and enhances the age of retirement to 60 years without first giving any finding whether it is practicable to give effect to the model Standing Order" and (i) "Whether the settlement arrived at under Section 18(3) and Section 19(2) of the Industrial Disputes Act, 1947, between the petitioner and the workmen represented by their recognised majority union and which settlement was in force when impugned orders were made, had put any bar on the rights of the workmen to approach the authorities under the sald Act for seeking modification of the Standing Orders with regard to the fixation of the age of superannuation of the workmen". The High Court answered the first question in the affirmative holding that it was open to the Certifying Authority to WA No.100325/2022 C/W 30 WA No.100235/2022 & CCC No.100109/2023 entertain an application for modification of the clause fixing the date of superannuation, the provisions in the model Standing Orders, notwithstanding. On the second point the High Court came to the conclusion that the settlement arrived at in conciliation proceedings was binding on the workmen and as Clause 19 of the settlement kept the service conditions which were not changed intact and Clause 21 of the settlement did not permit raising of any demand throwing an additional financial burden on the IOCL, it was not permissible to modify the certified Standing Orders by an amendment as that would alter the service condition and increase the financial burden on the Management. In this view that the High Court took it quashed the orders passed by the two authorities below and made the rule in CWP No. 1717/87 absolute while dismissing CWP No. 3417/87 with no order as to costs. It is against this order that the Trade Unions have approached this Court.
7. The Standing Orders Act was enacted to define with sufficient precision the conditions of employment for workers employed in industrial establishments and to make the same known to them. The object of the Act was to have uniform Standing Orders in respect of the matters enumerated in the schedule to the Act regardless of the time of their appointment. With this in view the Act was enacted to apply to all industrial establishments wherein 100 or more workmen were employed on any date of the preceding 12 months.
Within six months from the date on which this enactment becomes applicable to an industrial establishment, the employer is obliged by Section 3 to submit to the Certifying Officer draft Standing Orders proposed by him for adoption in his Industrial establishment. Sub-section (2) of Section 3 lays down that in such draft Standing Orders provision shall be made for every matter set out in the schedule which may be applicable to the industrial establishment and where model Standing Orders have been prescribed shall be, so far as practicable, in conformity with such model. Section 4 provides that the Standing Orders shall be certifiable if (a) provision is made therein for WA No.100325/2022 C/W 31 WA No.100235/2022 & CCC No.100109/2023 every matter set out in the schedule which is applicable to the Industrial establishment and (b) the Standing Orders are otherwise in conformity with the provisions of the Act. It further casts a duty on the Certifying Officer or Appellate Authority to adjudicate upon the fairness and reasonableness of the provisions of any Standing Orders. On receipt of the draft Standing Orders, Section 5 requires the Certifying Officer to forward a copy thereof to the trade union, if any, of the workmen, or where there is no such trade union, to the workmen In such manner as may be prescribed, together with a notice in the prescribed form requiring objections, if any, which the workmen desire to make to the draft Standing Orders. Thereafter the Certifying Officer must hear the concerned authorities and decide whether or not any modification of or addition to the draft submitted by the employers is necessary to render the draft Standing Orders certifiable under the Act. He is then expected to certify the draft Standing Orders with modifications, if any, and send authenticated copies thereof in the prescribed manner to the employer, to the trade union or other prescribed representatives of the workmen within 7 days. Section 6 provides for an appeal against the order of the Certifying Officer. The Appellate Authority has to communicate its decision to the Certifying Officer, to the employer and the trade union or other prescribed representative of the workmen within 7 days from the date of its order. Section 7 provides that the Standing Orders shall, unless an appeal is preferred, come into operation on the expiry of 30 days from the date on which authenticated coples thereof are sent under Section 5(3) or where an appeal is preferred, on the expiry of 7 days from the date on which copies of the orders of the Appellate Authority are sent under Section 6(2). Standing Orders duly certified as above for the Barauni Refinery came into operation on 5th December, 1964 as provided by Section 7. We then come to Section 10 which provides for modification of certified Standing Orders. Sub-section (1) thereof states that the Standing Orders finally certified shall not, except on agreement between the employer and WA No.100325/2022 C/W 32 WA No.100235/2022 & CCC No.100109/2023 the work-men or a trade union or other representative body of the workmen be liable to modification until the expiry of six months from the date on which the Standing Orders or the last modification thereof came into operation. Sub-section (2) of Section 10 reads as under: Subject to the provisions of Sub-section (1), an employer or workman or a trade union or other representative body of the workman may apply to the Certifying Officer to have the standing orders modified, and such application shall be accompanied by five copies of the modifications proposed to be made, and where such modifications are proposed to be made by agreement between the employer and the workmen or a trade union or other representative body of the workmen, a certified copy of that agreement shall be filed along with the application. It was under this provision that Clause 20 of the certified Standing Orders was sought to be modified.
8. Since the High Court has answered the first point in the affirmative i.e. in favour of the workmen, we do not consider 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 concillation 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 WA No.100325/2022 C/W 33 WA No.100235/2022 & CCC No.100109/2023 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:
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, (1) those arrived at outside the conciliation proceedings and (ii) those arrived at in the course of conciliation proceedings. A settlement WA No.100325/2022 C/W 34 WA No.100235/2022 & CCC No.100109/2023 which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging 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 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 4th August, 1983 was binding on all the workmen of the Barauni Refinery including the members of Petroleum and Chemical Mazdoor Union.
9. The settlement does not make any specific mention about the age of retirement. Clause 19 of the settlement, however, provides that such terms and conditions of service as are not changed under this settlement shall remain unchanged and operative for the period of the settlement. The age of retirement prescribed by Clause 20 of the certified Standing Orders was undoubtedly a condition of service which was kept intact by Clause 19 of the settlement. The WA No.100325/2022 C/W 35 WA No.100235/2022 & CCC No.100109/2023 provisions of the Standing Orders Act to which we have adverted earlier clearly show that the purpose of the certified Standing Orders is to define with sufficient precision the conditions of employment of workman and to acquaint them with the same. The charter of demands contained several matters touching the conditions of service Including the one concerning the upward revision of the age of retirement. After deliberation certain conditions were altered while in respect of others no change was considered necessary. In the case of the latter Clause 19 was introduced making it clear that the conditions of service which have not changed shall remain unchanged i.e. they will continue as they are. That means that the demand in respect of revision of the age of retirement was not acceded to.
10. By Clause 21 of the settlement extracted earlier the Union agreed that during the period of the operation of the settlement they shall not raise any demand which would throw an additional financial burden on the management, other than bonus. Of course the proviso to that clause exempted matters covered under Section 9A of the Industrial Disputes Act from the application of the said clause. However, Section 9A is not attracted in the present case. The High Court was, therefore, right in observing: "when the settlement had been arrived at between the workmen and the company and which is still in force, the parties are to remain bound by the terms of the said settlement. It is only after the settlement is terminated that the parties can raise any dispute for fresh adjudication". The argument that the upward revision of the age of superannuation will not entail any financial burden cannot be accepted. The High Court rightly points out: "workmen who remain in service for a longer period have to be paid a larger amount by way of salary, bonus and gratuity than workmen who may newly join in place of retiring men". The High Court was, therefore, right in concluding that the upward revision of the age of superannuation would throw an additional financial burden on the management in violation of Clause 21 WA No.100325/2022 C/W 36 WA No.100235/2022 & CCC No.100109/2023 of the settlement. Therefore, during the operation of the settlement it was not open to the workmen to demand a change in Clause 20 of the certified Standing Orders because any upward revision of the age of superannuation would come in conflict with Clause 19 and 21 of the settlement. We are, therefore, of the opinion that the conclusion reached by the High Court is unassailable.
33. In sum and substance in the above decision of Barauni Refinery's case, the Hon'ble Apex Court held that during the operation of settlement, it is not open for the workmen to demand a change in conditions of service contrary to the settlement.
34. In the case on hand, principles laid down by the Hon'ble Apex Court in Barauni Refinery's case stated supra, would aptly apply. In the present case also, CSO was in force governing the conditions of service from 31.05.1971. Workers Union of the appellant/Management submitted the Charter of Demands on 6.10.2016 and 1.12.2016. The said Charter of Demands also demanded enhancement of age of retirement from 58 to 60 years. The said demand to increase the retirement age from 58 to 60 years is not acceded to. Under Clause-71 of the settlement, it is agreed between the parties WA No.100325/2022 C/W 37 WA No.100235/2022 & CCC No.100109/2023 that settlement is in full and final settlement of the demands contained in the Charter of Demands submitted by the Workers Unions on 6.10.2016 and proposals including amendment if any put forth by the Management on 2.1.2017. Under Clause-72 of the settlement, it is further agreed that there shall be no demand for any further increase in wages/salary, allowances or bonus or any other financial or non-financial benefits, which means the Workers Union could not make demand, which would have financial implication on the Management. Clauses-71 and 72 of the settlement in the present case are similar and akin to Clauses-19 and 21 of the settlement in Barauni Refinery's case. The learned Single Judge is not right in holding that it does not contain any such commitment or undertaking by the workmen that they would not claim or make any demand which would have a financial burden on the employer.
35. A co-ordinate Bench of this Court in Rajashree Cement's case supra was considering the case of a similar fact situation. In Rajashree Cement's case also, CSO was WA No.100325/2022 C/W 38 WA No.100235/2022 & CCC No.100109/2023 governing the workers with regard to service conditions. The Workers Union and the Management had entered into settlement on 26.10.2016. One of the Charter of Demands was to increase the age of retirement from 58 to 60 years. After discussion, certain demands were acceded to and certain demands were not accepted. It was agreed between the parties that demands which were dropped would not be raised or re-negotiated during the period of operation of the settlement i.e. from 1.6.2016 to 31.05.2021. Subsequent to settlement dated 26.10.2016, the Government of Karnataka amended MSO by Notification dated 27.03.2017, based on which the Workers Union filed an application under Section 10(2) of the IESO Act to modify the clause relating to the age of retirement to increase from 58 to 60 years. The Certifying Officer allowed the application and modified the clause relating to the age of superannuation enhancing from 58 to 60 years. Against which, appeal was filed which came to be dismissed. Challenging the order of Certifying Officer as well as appellate order, writ petition was filed. The learned Single WA No.100325/2022 C/W 39 WA No.100235/2022 & CCC No.100109/2023 Judge following the decision of the Hon'ble Apex Court in Barauni Refinery's case supra held that when there is a negotiated settlement, neither the employer nor the trade union can claim to the contrary and held that the amendment could not be sought during the period of settlement. Against which, writ appeal was filed which came to be dismissed affirming the learned Single Judge's order by following Barauni Refinery's case.
36. In the instant case also, during the period of settlement based on the amendment brought into by the Government of Karnataka to the MSO with regard to enhancement of age of superannuation from 58 to 60 years, respondents/Workers Union sought amendment to Clause-26 of CSO to increase the age of superannuation from 58 to 60 years. Settlement was entered into between the parties on 20.09.2017, which was to be in force from 1.3.2017 to 31.05.2020 for a period of 39 months. In terms of Rajashree Cement's case, the respondents/Workers Union could not have sought for amendment to CSO with regard to WA No.100325/2022 C/W 40 WA No.100235/2022 & CCC No.100109/2023 age of superannuation is concerned during the period of settlement.
37. Learned counsel for the respondents/Workers Union placed reliance on a decision of co-ordinate Bench of this Court in M/s. Grasim Industries Limited's case (supra). The said decision is rendered without noticing the decision of Hon'ble Apex Court in Barauni Refinery's case (supra). Learned counsel for the respondents/Workers Union has also placed reliance on a decision of another co-ordinate Bench of this Court in Federal Mogul's case (supra). The said decision could be clearly distinguishable on facts. In Federal Mogul's case (supra), there was no CSO relating to the age of retirement, as noticed by the Bench at paragraph- 20 of the said judgment to hold that Barauni Refinery's case is not applicable to the facts of the said case. In the case on hand, the CSO contained clause with regard to age of retirement. As such, the above decision in Federal Mogul's case would not assist the respondents/Workers Union.
WA No.100325/2022 C/W 41 WA No.100235/2022 & CCC No.100109/2023
38. For the foregoing reasons and by following the decision of the Hon'ble Apex Court in Barauni Refinery's case (supra) and decision of co-ordinate Bench of this Court in Rajashree Cement's case (supra), Writ Appeal filed by the appellant/Management requires to be allowed. Hence, we proceed to pass the following order:
ORDER
a) Writ Appeal No.100325/2022 filed by the appellant/Management stands allowed.
b) Impugned order dated 21.04.2022 passed by learned Single Judge in WP No. 119764/2020 as well as order passed by Certifying Officer dated 31.07.2018 and order dated 5.12.2019 passed by Appellate Authority in SOA/CR-
08/2018-19 are set-aside.
c) In view of allowing the appeal filed by appellant/Management, WA No.100235/2022 filed by respondents/Workers Union would no more survive for consideration and WA No.100325/2022 C/W 42 WA No.100235/2022 & CCC No.100109/2023 accordingly, WA No.100235/2022 stands dismissed.
d) In view of disposal of both Writ Appeals, contempt petition would not survive for consideration and accordingly, it stands disposed off.
Pending applications, if any, do not survive for consideration and accordingly, they are disposed off.
Sd/-
JUDGE Sd/-
JUDGE JTR