Bombay High Court
J.K. Chemicals Ltd. vs B.D. Borude And Others on 13 July, 1989
Equivalent citations: [1989(59)FLR333], (1990)ILLJ65BOM
Author: S.P. Bharucha
Bench: S.P. Bharucha
JUDGMENT
1. This writ petition impugns the order made by the Industrial Tribunal declining to pass an award in terms of a settlement on the ground that there was non-compliance with the provisions of Rule 62 of the Industrial Disputes (Bombay) Rules, 1957.
2. An industrial dispute between the petitioners and its workmen was referred to the Industrial Tribunal for adjudication. The dispute related to pay scales, dearness allowance and other service conditions. The workmen were represented by the 2nd respondent trade union. Pending the disposal of the reference, the workmen formed a committee to discuss with the petitioners a possible settlement. A memorandum signed by 704 out of the 710 workmen stated thus : "We, the workmen of J.K. Chemicals. Ltd., Thane have formed a Committee to discuss with the Company to arrive at agreement. This Committee has our full support. We want this Committee to discuss and negotiate with the Company on issues of wages, gratuity, production bonus, leave, L.T.A. etc., and arrive at a settlement." Pursuant to this memorandum the committee of workmen and the petitioners entered into negotiations which culminated in a settlement dated May 31, 1978. Each of the aforementioned 704 workmen signed a memorandum addressed to the petitioners which read thus : "I have read the Settlement signed by the Management and the Workmen on May 31, 1978 under Section 2(p) read with Section 18(1) and Rule 62 of the Industrial Disputes Act, 1947 covering ad-hoc increments, shift allowance, leave travel allowance, rate of payment for working on paid-holidays, gratuity, production bonus etc. I accept this settlement and the benefits under it voluntarily and without protest. The terms of this settlement are binding on me."
3. An application was then made to the Industrial Tribunal to pass an award in terms of the said settlement. The application was made jointly by the petitioners and those workmen who formed the committee. The Tribunal framed the following issue upon that application : "Whether the alleged settlement is arrived at with free consent of the workmen or with coercion and force as alleged ?" Evidence was led. The Tribunal came to the conclusion that the settlement had been arrived at with free-will and not under coercion or force. The Tribunal then considered the consequential relief of passing an award in terms of the settlement. It noted that it had been contended on behalf of the petitioners that since almost all except 6 of the workmen had accepted the terms of the settlement and their dues in pursuance thereof, the settlement should be held to be fair and proper and an award passed in terms thereof. The Tribunal said that if the matter rested here there was not difficulty in passing an award in terms of the settlement for it was common ground that the workmen had authorised a certain number from among them to negotiate with the petitioners and as a conclusion thereto the settlement had been arrived at. The 2nd respondent trade union had, however, contended that the settlement had not been arrived at in pursuance of the provisions of Rule 62. Rule 62, inter alia, stated that the settlement had to be signed by "(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." The import of the provision was that the workmen had to decide in a meeting to authorised a member from among them as its representative to settle matters with the employer. The implication of the rule was that a meeting had to be held in which such representatives had to be authorised. There was nothing to suggest that the committee here formed by the workmen had been formed in a meeting held for that purpose. Therefore, Rule 62 did not appear to have been complied with. This was a formal aspect. Nonetheless, no award in terms of the settlement as prayed for in the application could be passed.
4. Mr. Parakh, learned counsel for the petitioners, pointed out that there was no dispute that the petitioners' workmen, barring 6 out of 710, had authorised the members of the committee to negotiate with the petitioners, that those negotiations had resulted in a settlement, and that that settlement and their dues thereunder had been accepted by the 704 workmen. The only ground upon which the Tribunal had not passed an award in terms of the settlement was that the workmen had not authorised the members of the committee during the course of a meeting. In Mr. Parakh's submission, the object of Rule 62 was to ensure that the workmen had in fact authorised a representative body to negotiate and arrive at a settlement with the employer. If it could be shown that such authorisation had in fact been given, though not at a meeting, the Tribunal could not decline to pass an award in terms of the settlement reached by the representative body with the employer. In other words, the submission was that Rule 62 was not mandatory.
5. Mr. Ganguli, learned counsel for the 2nd respondent, on the other hand, submitted that Rule 62 was mandatory and that disastrous consequences could result from holding that it was only directory.
6. In my view, Rule 62 has to be appreciated for what it is. Its object is to ensure that a settlement which has been arrived at by representatives who are not duly authorised is not foisted on the workmen. Such authorisation may most conveniently be given at a meeting but that is not to say that it cannot be given otherwise. If it is found by the Tribunal that due authorisation has in fact been given, though not at a meeting, the Tribunal may not say that it will not pass an award in terms of the settlement reached by the authorised representatives with the employer only on the ground that the representatives were not authorised at a meeting. No doubt, the Tribunal has to be careful to see that due authorisation has in fact been given. Such care must be exercised whether the authorisation has been given at a meeting or otherwise. In other words, Rule 62, in so far as it provides that the authorisation must be given "at a meeting of the workmen held for the purpose", must be read as being directory and not mandatory.
7. There is no authority of any court squarely on the point. The point has to be decided having regard to the object of Rule 62 and in keeping with justice. It would be manifestly unjust to hold that the settlement reached by the committee duly authorised by 704 out of 710 of the petitioners' workmen and accepted by them should be discarded merely because that authorisation, though duly given, was not given at a meeting. To discard the settlement would mean that the reference would have to be proceeded with. It would have to be proceeded with. It would have to be proceeded with regardless of the fact that 704 out of 710 workmen have no surviving dispute with the petitioners.
8. All things considered, the order of the Industrial Tribunal dated January 12, 1983 must be set aside in so far as it declines to make an award in terms of the settlement dated May 31, 1978. The matter shall stand remanded to the Industrial Tribunal. The President of the Industrial Tribunal, shall assign the reference to a Member thereof who shall pass an award in terms of the said settlement.
9. No order as to costs.