Madras High Court
Moorco (India) Ltd. vs Government Of Tamil Nadu And Ors. on 24 September, 1998
Equivalent citations: (2000)IIILLJ247MAD
JUDGMENT Y. Venkatachalam, J.
1. This writ petition is filed by the writ petitioner, invoking Article 226 of the Indian Constitution, for the relief sought for to scrap the order passed by the Government in G.O.Ms. No. 467, dated March 22, 1990.
2. In support thereof, he filed an affidavit, wherein he narrated all the facts and circumstances that forced him to file the writ petition and requested the Court to allow the writ petition.
3. On the other hand, the fifth respondent filed counter rebutting all the material allegations against the respondent one after another and requested the Court to dismiss the matter for want of merit.
4. The arguments of the learned advocates on both sides are heard.
5. The point for consideration is, as to whether there are any valid grounds to allow the writ petition or not?
6. I have gone through the material documents available on record, particularly with regard to the contents of the affidavit, counter, besides the contents of the impugned G.O. and also the relevant material documents available in the typed set of documents. I have also examined the two decisions placed before the Court on behalf of the contesting respondent, viz.:
(1) Nedungadi Bank Ltd. v. V.K. Hariharan [Writ Petition No. 10712 of 1991, dated August 22, 1996].
(2) Moorco (India) Ltd. v. Government of Tamil Nadu [Writ Petition No. 5497 of 1990, dated December 3, 1991], for their application and to give a finding in favour of the respondents.
7. Having seen the entire material available on record, the salient features of the case of the writ-petitioner and that of the respondent are as follows:
The petitioner is a company registered under the Companies Act manufacturing safety relief valves and flow-meters and employed 120 workmen, who at the relevant time were members of the fifth respondent union. According to the writ-petitioner, the fifth respondent on January 8, 1988 suddenly called for a strike and conciliation proceedings were initiated and the demand of the fifth respondent related to bonus for 1986-87 under the Payment of Bonus Act and the management contended that it was entitled to infancy protection under Section 16 of the Payment of Bonus Act as it commenced its production only in 1984-85 and after elaborate conciliation proceedings, settlement was entered into on January 27, 1988 between the parties under Section 12(3) of the Industrial Disputes Act to the effect that the workmen would be paid an advance and the issue as to whether the Payment of Bonus Act was applicable to the writ-petitioner would be referred to the second respondent decision and accordingly the workmen drew the advance after giving an undertaking to abide by the terms of settlement. The second respondent/arbitrator rendered his decision on June 30, 1988 holding that writ-petitioner/ management was entitled to protection under Section 16 of the Act and as such not entitled to pay any bonus. However, the said decision was not published by appropriate Government under Section 17 of the Industrial Disputes Act and meanwhile the fifth respondent filed a petition before the third respondent some time in August 1988 but its copy was not made i available to the writ-petitioner.
8. While the matters stood, all of a sudden the fifth respondent/union presented a petition on February 14, 1989 before the fourth respondent raising the same issue once over again as an industrial dispute and the writ-petitioner filed its counter on May 24, 1989 giving the true picture of the matter. The union also filed a petition before the Sub-Court, Trichy, questioning the award dated June 30, 1988 and also an interim application under Section 37 of he Act for condonation of the delay in filing the petition. However the second respondent later on informed the writ-petitioner to await for the result of the matter pending before the Civil Court, as he was also a party to proceedings. However, the management recovered the advance paid to its workmen in the meanwhile. The writ-petitioner received the conciliation failure report dated September 27, 1989 on October 5, 1989. However, the first respondent passed G.O.Ms. No. 467, dated March 22, 1990 referring the selfsame issue covered by the arbitrator's award for adjudication to Industrial Tribunal, Once publication is made, there cannot be adjudication on the same subject. The second respondent had failed to carry out his statutory duties. In such circumstances, the writ petitioner filed Writ Petition No. 5497 of 1990 for the issue of a writ of mandamus directing the second respondent to forward his decision, dated June 30, 1988, to the first respondent for publication and notice of motion was ordered on May 2, 1990 and it is pending. This writ petition is filed by the writ-petitioner by way of abundant caution challenging the order of the Government.
9. On the other hand, respondents 1 to 4 while accepting the case of the writ-petitioner that a dispute was raised as regards payment of bonus for 1986-87 and it was referred to the second respondent and there was a settlement, under Section 12(3) of the Industrial Disputes Act, 1947, on January 27, 1988 and to the terms thereof, contended that the second respondent was not appointed as arbitrator under Section 10-A of the Act and the decision dated June 30, 1988 was also not published under Section 17 of the Act and in the meanwhile, as the union raised the same issue before the Assistant Commissioner of Labour (Conciliation) the Government passed G.O.Ms.No.467 Labour and Employment, dated March 22, 1990, referring the issue for adjudication and the management filed Writ Petition No. 5497 of 1990 for a writ of mandamus to the second respondent to forward his decision, dated June 30, 1988, to Government for publication. According to the respondents, in view of Clause 3 of Section 12(3) settlement, discussions were held with both the parties and after scrutinising the balancesheet and worksheet for 1983-84 to 1986-87 a decision was rendered by the second respondent on June 30, 1988 holding that the workmen were not entitled to bonus and that decision cannot be termed as arbitration under Section 10-A of the Industrial Disputes Act and he cannot be considered as arbitrator and this is outside the scope of Industrial Disputes Act as per the decisions in T. U. C. S. Ltd. v. S. Loganathan 1986 (2) L.L.N. 286 and Krishnaveni Transports and Ors. v. Special Deputy Commissioner of Labour, Madras and Ors. 1989 (2) L.L.N. 786. According to the respondents, as the second respondent was not appointed as arbitrator and there was no reference nor award under Section 17, there is no question of publication of the same in the Gazette. Further, according to the respondents, there was no arbitration agreement in Form D, as per Rule 26. Further, according to the respondents, the union had filed a petition before Sub-Court, Trichy, against the decision of the second respondent, dated June 30, 1988 and the same is still pending. As the conciliation proceedings failed, the Government is bound to pass orders under Section 12(5) of the Act as per the decision in 1988 (1) L.L.N. 172, and as such, the order passed by the Government in G.O. Ms. No. 467 Labour and Employment, dated March 22, 1990, and as such, this writ petition is liable to be dismissed.
10. Having seen the entire records in this case, it is clear that even though according to the petitioner herein a decision was rendered by the arbitrator, viz., second respondent, dated June 30, 1988, and it was not yet published by the Government. It is the contention of respondents 1 to 4 that on completion of conciliatory talks before the second respondent a settlement under Section 12(3) has been arrived at, that as per Clause 3 of the Section 12(3) settlement, it was agreed that the second respondent would examine the eligibility for bonus under Payment of Bonus Act, 1965, and offer his decision, that both the parties agreed to abide by the decision of the second respondent, and that based on the records, a decision was given by the second respondent in Proc. No. B1/3539/1988, dated June 30, 1988. That being so, it is the categoric contention of respondents 1 to 4 that the said decision of the second respondent cannot be termed as an arbitration under Section 10-A of the Industrial Disputes Act and that at best, it can be said that in the instant case, the parties have by a settlement under Section 12(3), agreed to refer the issue for private arbitration, and that, therefore, this is outside the scope of the Industrial Disputes Act and Section 10-A. In the above contention only the first part of the 3 same can be accepted, i.e., the decision rendered by the second respondent on June 30, 1988 is a settlement under Section 12(3) and it cannot be treated as an award by the arbitrator. Because it is rightly contended by respondents 3 1 to 4 that the second respondent, i.e., Deputy Commissioner of Labour, Trichy, has not been appointed as arbitrator under Section 10-A of the Industrial Disputes Act and no Award in terms of Section 17 of the Act has been passed by the second respondent. There is force in such contention. Further it is also contended by respondents 1 to 4 that because of the said position in this case, there is no question of the publication of the decision and the writ petitioners cannot await the publication of the award under Section 17 of the Act and that under Section 17 of the Act only report or arbitration, award or award of Labour Court, etc., can be published. There is force in the said contention of respondents 1 to 4 whereas the other contentions of respondents 1 to 4 that in the instant case, the parties have agreed to refer the issue for private arbitration cannot be accepted. It is significant to note that the decision in question herein has been rendered by the second respondent herein on June 30, 1988 and even according to respondents 1 to 4 as per Clause 3 of Section 12(3) settlement, it was agreed that the second respondent would examine the eligibility for bonus under Payment of Bonus Act, 1965, and offer his decision and both parties agreed to abide by the decision of the second respondent. That being so, it has to be considered only as the contention of the settlement under Section 12(3) and part of the conciliation proceedings and that therefore, the decision of the second respondent rendered on June 30, 1988 at best can be considered only as a report of the Conciliation Officer and not as an award of private arbitration outside the scope of the Industrial Disputes Act. That being so, the second respondent herein is duty bound to send a report to the appropriate Government or an officer authorised in this behalf by the appropriate Government. But that has not been done by the second respondent in this case so far. Therefore, the contention of respondents 1 to 4 that in the instant case, the parties have by a settlement under Section 12(3) agreed to refer the issue for private arbitration cannot at all be accepted.
11. In this view of the matter, the decisions referred to by the respondents herein are not applicable to the facts of the present case.
12. It is an admitted fact, even by respondents 1 to 4 that based on records, a decision was given by the second respondent in Proc. No. B1/3539 of 1988, dated June 30, 1988, that since Section 16 of the Payment of Bonus Act is applicable to the present case, the workmen are not entitled for bonus for the year 1986-87. It is also significant to note that already as per Clause 3 of Section 12(3) settlement, it was agreed that the second respondent would examine the eligibility for bonus under Bonus Act, 1965, and offer his decision and both the parties agreed to abide the decision of the second respondent. That being so, when a decision was given by the second respondent on June 30, 1998, the petitioner herein as well as the fifth respondent herein both are bound by the same and the fifth respondent cannot challenge the same. That apart, it is the duty of the second respondent herein to send such a report to the appropriate Government as per the provisions of Section 12(3) which runs as follows:
"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 or an officer authorised in this behalf by the appropriate Government together with a memorandum of the settlement signed by parties to the dispute."
Admittedly that has not been done by the second respondent herein, till date, for the reasons best known to him.
13. That apart, it is also admitted by the respondents 1 to 4 herein that the fifth respondent herein has filed a petition in the Court of Subordinate Judge, Trichy, against the decision given by the Deputy Commissioner of Labour (the second respondent herein) in Proc. No. B1/3539/1988, dated June 30, 1988 and the same is still pending. Thus from the above facts of this case, it is very clear that having already accepted to abide by the decision of the second respondent, after the issuance of the decision, the fifth respondent is disputing the same and that apart they have approached the Civil Court in this regard and the civil case also is still pending. In spite of all these things, once again the fifth respondent raised a dispute, conciliation made, failure report sent, impugned G.O was passed referring the self-same issue that was covered by the earlier conciliation proceedings. The Government has no reason at all to pass the impugned order when the same matter is pending before the Civil Court and also a decision has been rendered in this regard even on June 30, 1988 by the second respondent.
14. It is the statutory duty of the second respondent to forward his report to the Government according to the provisions of Section 12(3) of the Act and the Government has to act on the said report. That has not been done in this case. Instead the Government has passed the impugned G.O., without minding the above fact and the pendency of the same matter before the Civil Court. Therefore, I am of the clear opinion that the second respondent has failed to carry out his statutory duties in sending his report, dated June 30, 1988, to the Government for further action and his such failure has now created an unnecessary dispute. That apart without awaiting for the outcome of the petition filed before the Sub-Court, strangely the respondents have chosen to refer the self-same matter for adjudication.
15. Therefore, for all the aforesaid reasons and in the facts and circumstances of this case and also in view of any above discussions with regard to the various aspects of this case, I am of the clear view that even though the decision of the second respondent herein, dated June 30, 1988, cannot be termed as an arbitration under Section 10-A of the Act and also he cannot be considered as an arbitrator, also he cannot be considered as a private arbitrator and that arbitration is outside the scope of the Act, but it has to be taken only as a continuation of the conciliation settlement of the second respondent and part of the conciliation proceedings conducted by the second respondent and that, therefore, he was duty bound to send such a report to the Government which he failed to do. Therefore, in the presence of a decision rendered by the second respondent on June 30, 1988 and the pending suit in the Civil Court, the first respondent herein has no authority to issue the impugned G.O. referring the self-same issue for adjudication to the Industrial Tribunal. Therefore, the impugned G.O. is liable to be quashed. Thus the writ-petitioner herein has made out a clear case in their favour and the writ petition succeeds and the same deserves to be allowed.
16. In the result, the writ petition is allowed. No costs. Consequently, the impugned G.O.M.S. No. 467, dated March 22, 1990, on the file of the first respondent, Government of Tamil Nadu, is hereby quashed. Writ Miscellaneous Petition No. 9336 of 1990 is dismissed.