Allahabad High Court
M/S Imi Norgren Herion (Pvt.) Ltd. vs Labour Court, U.P. Noida And 3 Others on 8 October, 2018
Equivalent citations: AIRONLINE 2018 ALL 4501
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESRVED ON:-14.08.2018 DELIVERED ON:-08.10.2018 Court No. - 36 Case :- WRIT - C No. - 15390 of 2018 Petitioner :- M/S Imi Norgren Herion (Pvt.) Ltd. Respondent :- Labour Court, U.P. Noida And 3 Others Counsel for Petitioner :- Shakti Swarup Nigam Counsel for Respondent :- C.S.C.,Shekhar Srivastava Hon'ble Mrs. Sunita Agarwal,J.
The amendment application filed by the petitioner has been allowed on 14.08.2018 and necessary incorporation have been made.
The dispute in the present petition is with regard to the reference order dated 29.08.2017 which has been amended on 27.03.2018.
On the dispute raised by the respondent no.3, a reference dated 29.08.2017 was made by the Deputy Labour Commissioner, U.P. Noida, District Gautam Buddh Nagar referring the dispute with regard to the termination of services of respondent no.3 w.e.f 03.03.2015. The said reference reads as under:-
^^D;k lsok;kstdksa }kjk vius Jfed Jh jkgqy dqekj pkSgku iq= Jh jksgu flag in iSUVªh CokW; dh lsok,W fnukWd 03&03&2015 dks lekIr dh x;h FkhA mlds i'pkr i{kksa ds e/; le>kSrk fnukWd 18&08&2015 ds vuqlkj leLr ns; leLr miknkuksa@ xzsP;qVh dk Hkqxrku pSd }kjk oknh Jfed }kjk LosPNk ls izkIr dj fy;k tkuk mfpr rFkk@vFkok oS/kkfud gS\ ;fn ugha] rks Jfed vius lsok;kstdksa ls fdl fgrykHk@ vkuqrks"k ¼fjyhQ½ dks ikus dk vf/kdkjh gS ,oa vU; fdl fooj.k lfgrA^^ The present petition has been filed with the assertion that on the application moved by respondent no.3, Conciliation Case No. 146 of 2015 was registered. During conciliation proceedings, in order to avoid litigation, a registered settlement dated 18.08.2015 was arrived between the parties wherein respondent no.3 had agreed to withdraw his claim in the conciliation case no.146 of 2015 as also under the Payment of Wages Act namely case No.271 of 2015. He had further conceded not to file any claim or action against the petitioner-company or the contractor, as the case may be, in respect of the matter arising out of or relating to employment or termination of employment by them.
Thus the contention of the petitioner is that under the said agreement, the respondent-workman had entered into a settlement to leave the services of the employer without further protest and Rs.3,45,376/- was paid to the respondent no.3. The instant writ petition has been filed with the assertion that after entering into settlement, it was not open for the workman to proceed with the conciliation case. The proceeding of the conciliation case no.146 of 2015 had, thus, been brought to an end in terms of the settlement vide order dated 18.08.2015.
It is contended that after the settlement had been arrived between the parties, it was not open for the State Government to refer the dispute relating to termination with the added question as to whether the settlement of voluntary acceptance of monitory benefits by the workman is valid or not.
Submission is that the said reference is not valid within the meaning of Section 2-A of the Industrial Disputes Act' 1947 (hereinafter referred as Act' 1947), in as much as, the reference under Section 4-K of the Act' 1947, can be made only in the event of existence of the industrial dispute on the date of reference or if such a dispute is apprehended between the parties.
It is contended that with the settlement of the dispute the workman having given up his claim by signing the agreement on 18.08.2015, no industrial dispute exists on the date of reference. Reliance is placed upon the judgment of the Apex Court in National Engineering Industries Ltd. Vs. State of Rajasthan & others1, ANZ Grindlays Bank Ltd. (Now Known As Standard Chartered Grindlays Bank Ltd.) Vs. Union of India & others)2 and of this Court in Hindustan Aeronautics Limited Vs. State of Uttar Pradesh3 and Salora International Ltd. Noida Vs. Labour Commissioner, U.P. & others4 to submit that the conditions precedent for making reference under Section 2(b) of the Act' 1947 was not existing on the date of reference dated 29.08.2017.
It is noteworthy that the reference was further amended on 27.03.2018 by the Deputy Labour Commissioner in purported exercise of powers under Section 21 of the General Clauses Act (U.P. Amendment No.1) read with Section 4 of Act' 1947 by deleting the part of reference with regard to the validity of the settlement dated 18.08.2015.
It is further contended by the learned counsel for the petitioner that the appropriate Government had no jurisdiction to make any amendment in the reference as the provisions of Section 21 of General Clauses Act cannot be invoked.
Placing reliance upon the judgement of Apex Court in State of Bihar Vs. D.N. Ganguly & others5 and that of the Madras High Court in South India Estate Labour Relations Organization Vs. State of Madras6 and M/s. Shellac Industries Ltd. Vs. Their Workmen (represented by Shellac Industry's Workers Union)7, it is submitted that in the context of the scheme of the Act 1947, Section 21 of the General Clauses Act has no application. Once the dispute is referred by the State Government, during the continuance of the reference proceeding it is the tribunal which is seized of the dispute and which can only exercise jurisdiction in respect of it.
Once an order is passed by the appropriate government referring an industrial dispute to the tribunal for adjudication, the proceeding before the Tribunal are deemed to have commenced and they would be deemed to have concluded on the date on which the award made by the tribunal becomes enforceable under the provision of the Act. Under the scheme of the Act' 1947 after the dispute is referred to the tribunal, the jurisdiction of the appropriate government is completely ousted. The provisions of Section 21 of General Clauses Act has, thus, no application after the dispute is referred.
Lastly, it is contended that no opportunity whatsoever has been granted by the Deputy Labour Commissioner before making amendment in the reference vide order dated 27.03.2018.
Sri Shekhar Srivastava learned counsel for the respondent no.3, on the other hand, submits that the settlement dated 18.08.2015 is wholly against Section 23 of the Payment of Wages Act' 1936 which clearly lays down that any contract or agreement whereby an employee relinquished any right conferred by the Act shall be null and void to the extent which purport to deprive him of such right. The right to contest or demand wages payable under the said Act could not be taken away or any settlement such as 18.08.2015 in the instant case.
Looking to the dispute between the parties, the State Government reached at the conclusion of existence of industrial dispute and, therefore, decided to refer the dispute for adjudication. Submission is that the Conciliation Officer has no jurisdiction to adjudicate upon or refuse to refer a dispute as he could only settle the matter amicably.
In the instant case, the workman raised a dispute with regard to the termination of his services w.e.f 03.03.2015. The question as to whether under the Settlement dated 18.08.2015, allegedly signed by the parties, the workman had given up his claim to challenge the termination of his services, is subject matter of adjudication before the Labour Court.
Even otherwise, the alleged agreement dated 18.08.2015 had not been arrived between the parties during the conciliation proceeding as it did not arrive before the Conciliation Officer, rather an application was filed by the employer bringing the settlement dated 18.08.2015 on record to state that workman had received all dues and given up his challenge to the termination of his services.
It is the appropriate government which is competent to form an opinion as to the existence of the industrial dispute. The reference to various judgments of the Apex Court and of this Court has been made to state that the proposition that once the settlement had been arrived between the parties during the conciliation proceedings, the reference would be bad, is not applicable in the facts of the instant case.
In so far as the power of the State Government to amend the reference, it is contended that the said power has been recognized by the High Court of Calcutta in Kesoram Cotton Mills Ltd. Vs. Second Labour Court & others8. The reference has been made to Section 21 of the General Clauses Act to say that the power to amend the reference lies with the State Government.
On the question of notice, it is contended that the Division Bench of this Court in the case of Indian Explosive Ltd. (Fertilizer Division) Panki, Kanpur Vs. State of U.P. And others9 has held that neither the employer nor the workman can claim any right to be heard before an order of reference is made in as much as reference of a dispute is an administrative order. At this stage, no lis is involved between the parties. The said principles have been followed by this Court in the case of Hamdard (Waqf) Laboratories Vs. State of U.P. & others10 and IL JIN Electronics (India) Pvt. Ltd. Vs. State of U.P. & others11.
With reference to the judgment of Punjab and High Court in Dalmia Dadri Cement Ltd. Vs. Punjab State12, it is contended that the appropriate government has an inherent power to make amendment in the reference under Section 21 of the General Clauses Act.
Heard learned counsel for the parties and perused the record.
Before entering into the merits of the dispute, it would be apt to refer to certain provisions of Act' 1947. Sections 2-A, 4-K, 6-B, 6-D and the definition under Section 2(t) of the Act' 1947 are quoted as under:-
"2A. Dismissal etc., of an individual workman to be deemed to be an industrial dispute. - Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman any dispute or difference between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.] 4K. Reference of disputes to Labour Court or Tribunal. - Where the State Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to, the dispute to a Labour Court if the matter of industrial dispute is one of those contained in the First Schedule, or to a Tribunal if the matter of dispute is one contained in the First Schedule or the Second Schedule for adjudication.
Provided that where the dispute relates to any matter specified in the Second Schedule and is not likely to affect more than one hundred workmen, the State Government may, if it so thinks fit, make the reference to a Labour Court.] 6B. Settlement outside conciliation proceedings. - (1) A settlement arrived at by agreement between the employer and workmen otherwise than in the course of conciliation proceeding shall except as provided in sub-section (4), be binding on the parties to the agreement :
Provided that if the period for which a settlement shall remain in force has not been laid down in such settlement itself, it remain in force for one year from the date of its registration.
(2) As soon as settlement referred to in sub-section (1) has been arrived at, the parties to the settlement or any one of them may apply to the Conciliation Officer of the area concerned in the prescribed manner for registration of the settlement.
(3) On receipt of application for registration under sub-section (2) the Conciliation Officer or an authority noticed by the State Government in this behalf, either : (i) register the settlement in the prescribed manner, or (ii) refuse registration if it considers it to be inexpedient to do so on public grounds affecting social justice, or if the settlement has been brought about as a result of collusion, fraud or misrepresentation.
(4) Where a settlement under sub-section (1) has been refused registration, it shall not be binding under this Act.] 6D. Commencement and conclusion of proceeding. - Proceedings before a Labour Court or Tribunal shall be deemed to have commenced on the date of reference of a dispute to adjudication, and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under Section 6-A. 2(t) '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 an agreement has been signed by the parties there to in such a manner as may be prescribed and a copy thereof has been sent to the State Government and the Conciliation Officer"
Section 2-A mandates that in case the employer terminates the services of an individual workman or there is a difference between the workman and the employer in connection with or arising out of termination, retrenchment or dismissal, the State Government would be under obligation to refer the dispute for adjudication by an industrial tribunal or labour court, as the case may be.
It is the existence of the industrial tribunal which would clothe the appropriate Government with the power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended, the appropriate government lacks power to make any reference. Hence the real test, is whether the industrial dispute in existence on the date of reference for adjudication? If the answer is in negative, the power of State Government to make a reference would have extinguished.
Section 4-K of the Act provides for the power of the State Government to make a reference. Section 4-K contemplates both the situation i.e. whether the dispute exists or is apprehended. It is also settled that there is no limitation for making reference for adjudication under Section 4-K of the Act' 1947. An aggrieved person has to make an application in writing to invoke conciliation proceeding and on failure thereof, the appropriate Government has no option but to refer the dispute for adjudication.
It would have been a different case, if a settlement arrives between the parties before the Conciliation Officer in as much as, it would have a legal backing. However, under Section 6-B any settlement outside the conciliation proceeding, if arrived at between the employer and the workman, is required to be registered before the Conciliation Officer who shall examine the terms of the settlement so as to satisfy that the same is not a result of the undue influence coercion or against the public policy. Such a settlement would have been binding on the parties to the agreement only after its registration. However, under Sub-section (3) of Section 6-B, the Conciliation Officer also has power to refuse to register the settlement, if it considers that the same is affecting social justice or is a result of collusion, fraud or misrepresentation.
Under Section 6-D of the Act' 1947, the proceedings before the labour Court or tribunal shall be deemed to have commenced on the date of reference of the dispute to adjudication and concluded on the date on which the award becomes enforceable under Section 6-A. There is no dispute about the fact that once the reference is made for adjudication, the jurisdiction to decide the dispute lies with the tribunal. In any case, the Conciliation Officer has no jurisdiction to enter into the merits of the dispute between the parties. In case, no agreement is arrived between the parties in the conciliation process, it has to send the dispute before the State Government for making reference who shall satisfy itself about the existence of industrial dispute on appreciation of material before it.
In the instant case, it appears that the conciliation proceedings in case No.146 of 2015 was registered on the application filed by the workman who had raised a dispute with regard to his termination w.e.f 03.03.2015. When the conciliation proceedings were going on an alleged agreement dated 18.08.2015 was filed before the Conciliation Officer to state that a settlement had been arrived between the parties and the workman was satisfied with the payment received by him. It appears that the Conciliation case no.146 of 2015 was decided on 18.08.2015 by the Conciliation Officer on the alleged agreement which was filed before it.
It further appears that the Deputy Labour Commissioner made a recommendation in the said proceeding that there was a dispute between the parties regarding the terms and conditions of the settlement and further that whether the workman had given up his claim to challenge the termination of his services. The State Government after making due enquiry found that the industrial dispute exists between the parties and, therefore, made a reference on 29.08.2017 wherein it has also referred the dispute relating to the validity of the settlement dated 18.08.2015.
However, realizing the fact that the settlement dated 18.08.2015 would have no bearing on the dispute of termination of services raised before it, in as much as, it was not a valid settlement within the meaning of Section 6-B of the Act or a settlement arrived during the course of the conciliation proceeding, it has proceeded to make amendment in the reference, thereby referring the dispute relating to the termination for adjudication before the labour court. The question as to whether the workman had given up his claim to challenge the termination of his services and the payment received by him would satisfy his claim, can be examined by the labour court after the evidences are lead by the parties.
On the submission of learned counsel for the petitioner that in view of the settlement dated 18.08.2015 the dispute relating to the termination of services of the workman could not have been referred to the labour court for adjudication is, therefore, found devoid of merits.
The judgements relied upon by the learned counsel for the petitioner on the issue of settlement are distinguishable in the fact and circumstances of the instant case.
Now the question remains as to whether the provisions of section 21 of the General Clauses Act could be invoked for making amendments in the reference. To answer the said question, Section 21 of the General Clauses Act is relevant to be noted here:-
"21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.
Where, by any [Central Act] or Regulations a power to [issue notifications,] orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any [notifications,] orders, rules or bye-laws so [ issued]."
The High Court of Calcutta in Kesoram Cotton Mills Ltd. (supra) while upholding the contention of the petitioner therein that the State Government lacks power to add new parties to the reference has observed as under:-paragraph no.10 and 11.
"10. Mr. Roy must, therefore, be upheld in his contention that the State Government lacked the power to add I new parties to the reference even though that did not amount to supersession or cancellation of the reference. Although I uphold Mr. Roy In this contention of his, I have to observe that the objection is one of form and not or substance. It is always open to the Government to make an independent reference over the suspension of the 11 workmen, whose names were inadvertently left out of the original order of reference. The State Government may lack in the power to amend the original reference by adding the names of new parties, but nothing prevents it from making an additional reference to the same tribunal so that both the references may be considered together. This is the view which was expressed by Venkatarama Aiyar (one of the learned judges constituting the Bench which decided the case of 1958 SCA 1082: (AIR 1958 SC 1018) (supra), in the case of South India Estate Labour Relations Organisation v. State of Madras, ILR (1954) Mad 1033 at p. 1051 at p. 1051 (S) AIR 1955 Mad 45 at p. 51.
11. I, however, make it clear that if there is an apparent error in the order of reference (and no question arises either of supersession, cancellation or modification of the reference or of any addition thereto), such an error may be corrected by way of corrigendum. But the State Government has no power to add parties to the reference excepting under the provisions of Section 10(5) of the Industrial Disputes Act. The addition of names as made by them in List (B) of the corrigendum notification is not covered by Section 10(5) of the Industrial Disputes Act and must, therefore, stand quashed."
The judgment of Apex Court in State of Bihar (supra) has been considered to opine that indeed the State Government has no power to supersede or cancel the reference in as much as, once the reference is made, the tribunal is seized with the matter.
The said view has been cited with approval by the High Court of Punjab and Haryana in Dalmia Dadri Cement (supra) as under:-
"we have no doubt that Government had the power on the terms of Section 10 of the Indus trial Disputes Act itself read with Section 21 of the General Clauses Act to make the proposed amendment. Indeed that this was a matter of mere form and not of substance had been recognised by a decision of the Madras High Court in (S) AIR 1955 Mad 45" Mr. Suri then relied on the judgment of the Madras High Court in (S) AIR 1955 Mad 45 In that case, it was held that this kind of objection was of form than of substance and when it was open to the Government to make an independent reference under Section 10 concerning any matter not covered by the previous reference, the fact that it took the form of an amendment to the existing reference was a mere technicality which did not merit any consideration."
The judgments of Supreme Court, Calcutta and Madras High Court relied upon by learned counsel for the petitioner, (as noted above) are also confined to the question as to whether an order of reference made by the appropriate government can be subsequently cancelled or superseded by it.
The said judgments cannot be relied to hold that the State Government has no power to make amendment in the reference by invoking the provision of section 21 of the General Clauses Act.
It would be worthwhile to note that the section 21 of the General Clauses Act speaks of inherent power of the State Government to amend or vary a notification or order issued by it in the administrative exercise of its power. However, under such power, the State Government cannot rescind the reference, in as much as, the proceedings before the labour court or tribunal are deemed to have commenced on the date of reference of a dispute for adjudication and the tribunal is seized with the power to decide the same. But, that would not denude the State Government from making any correction in the reference on an apparent error noticed or brought before it, which would not amount to supersession, cancellation or modification of the reference or any addition of parties thereto i.e. which would change the nature of dispute.
In Kamla Prasad Khetan vs Union of India13, the Apex Court has pointed out that section 21 of the General Clauses Act embodied a rule of construction and that the said rule must have reference to the context and subject matter of statute to which it is being applied and further held that the said rule could not be extended to revoke or cancel an original notification under Section 18 of the Industries (Development and Regulation) Act 1951.
Thus, the conclusion is that the mistake or error apparent in the order of reference which would not amount to change the nature of dispute can be corrected by the State Government by invoking the provisions of Section 21 of the General Clauses Act.
In so far as the opportunity of hearing is concerned, the said issue is no longer res integra with the decision of the Division Bench in Indian Explosive Ltd. (Fertilizer Division) Panki, Kanpur (supra).
For the aforesaid reasons, no infirmity is found in the decision of the State Government to make the reference dated 29.08.2017 and further to make correction by the order dated 27.03.2018 in the purported exercise of power under Section 21 of the General Clauses Act read with Section 4 of the U.P. Industrial Act' 1947.
All other submissions made on the merits of the claim of the parties require no adjudication in as much as, the dispute referred to labour court for adjudication, is pending.
For all the above noted reasons, the writ petition is found devoid of merits and hence dismissed.
Order Date :-08.10.2018 Himanshu