Karnataka High Court
N S L Sugars (Tungabhadra)Limited vs State Of Karnataka on 3 March, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 24331 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 24331 OF 2018 (L-RES)
BETWEEN:
1. N S L SUGARS (TUNGABHADRA)LIMITED
(FORMERLY KNOWN AS SIRGUPPA SUGARS &CHEMICALS
LTD)
NO.60/1, 2ND CROSS,
RESIDENCY ROAD,
BANGALORE-560 025
REP BY ITS ASSISTAT GENERAL MANAGER (LIAISON)
SRI.H.V.AMARNATH.
...PETITIONER
(BY SRI. VAISHALI HEGDE.,ADVOCATE)
AND:
Digitally 1. STATE OF KARNATAKA
signed by REP BY ITS DESK OFFICER-05
POORNIMA LABOUR DEPARTMENT,
SHIVANNA KA.RA.VYO (Y) SERVICES,
Location: VIKASA SOUDHA,
HIGH DR.AMBEDKAR ROAD,
COURT OF BANGALORE-560 001.
KARNATAKA
2. THE LABOUR COMISSIONER
LABOAUR DEPARTMENT,
KARMIKA BHAVAN,
BANNERGHATTA ROAD,
BANGALORE-560 029.
3. SRI.C.SMOHAN
PRESIDENT,
SUGAR MILLS EMPLOYEES UNION,
GAURIBIDANUR-561 202
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WP No. 24331 of 2018
CHICKKABALLAPUR DISTRICT.
4. THE SECRETARY
GSSK OFFICIALS & EMPLOYEES ASSOCIATION,
GAURIBIDANUR-561 202
CHICKABALLAPUR DISTRICT.
5. THE SECRETARY
GAURI SUGARS EMPLOYEES ASSOCIATION,
(SIRUGUPPA SUGARS EMPLOYEES UNION)
GAURIBIDANUR-561 202
CHICKKBALLAPUR DISTRICT.
...RESPONDENTS
(BY SRI: BHOJEGOUDA T. KOLLER, AGA FOR R1 & R2;
SRI: C.S. MOHAN, PARTY-IN-PERSON R3;
R4-SERVED & UNREPRESENTED
SRI: V.S NAIK, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER OR
DIRECTION, QUASHING THE ORDER DATED 17.3.2018 BEARING NO.
KA.E 277 IDM 2011 PASSED BY THE 1ST RESPONDENT VIDE
ANNEXURE 'A' AND ALL FURTHER PROCEEDIGNS THERETO IN THE
INTEREST OF JUSTICE AND EQUITY AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a) Issue a Writ of Certiorari or any other appropriate Writ or Order or Direction, quashing the Order dated 17/03/2018 bearing No. Ka.E 277 IDM 2011 passed by the 1st respondent vide Annexure-a and all further -3- WP No. 24331 of 2018 proceedings thereto, in the interest of justice and equity.
b) Issue such other appropriate Writ or Order or Direction as deemed fit under the facts and circumstances of the case, in the interest of justice and equity.
2. The petitioner is a company incorporated under the Companies Act, 1956 for manufacturing of sugar which was earlier known as "Siruguppa Sugar's & Chemicals Ltd., Gauribidanur' ['SSCL' for short] which is taken over by purchaser and subsequently is known as NSL (Tungabhadra) Sugar Private limited ['NSL' for short]. The sugar factory was initially set up by a Cooperative Society by name of Gauribidanur Sahakari Sakkare Kharkhane ['GSSK' for short]. There being heavy losses and loans payable, the Director of Sugar and Registrar Cooperative Societies had vide order dated 12.09.1986 appointed liquidator under Section 73(1) of Karnataka Cooperative Societies Act, 1959.
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3. A notification inviting tender having been issued, on 3.04.1987 SSCL participated in the same and was successful and, as such, purchased the unit as a going concern. The sale deed being executed in favour of SSCL on 18.06.1988, there being several disputes between the liquidator and SSCL regards last instalment and payment of interest, as also disputes with sugarcane growers as regards payments payable to them, SSCL became sick and was referred to the Board for Industrial and Financial Reconstruction [BIFR] in case No.371/2001. A recovery certificate had also been issued by the Deputy commissioner, Chikkaballapur who had taken possession of the factory in the year 2001. It was in that background that the factory remained closed from 14.04.2001 and at that point of time there were 381 workers, both seasonal and non-seasonal, employed at SSCL.
4. The Commissioner of Labour and Deputy Labour Commissioner-cum-Recovery Officer issued various -5- WP No. 24331 of 2018 recovery certificates for the recovery of dues. Since the chances of resumption and running of the factory was remote, majority of the workers offered to resign for full and final settlement of their dues. Accordingly, the members of respondent No.5-Union, after holding meetings as per law, formed an ad-hoc committee consisting of 15 members to negotiate with the Management. Upon bilateral discussions being held between the representatives of the management of SSCL and the office bearers of the Union, the parties arrived at an amicable settlement on 2.04.2008 wherein it was agreed that the settlement covered the recovery certificates issued by the Commissioner for labour and Deputy labour Commissioner-cum-Recovery Officer, as also all other disputes between the management and the workman, in pursuance of which the workman had agreed to receive the amounts as mentioned in clause 1 to 3 of Settlement deed dated 2.04.2008. -6- WP No. 24331 of 2018
5. In terms of the said settlement, the employer effected payment of 379 workers, the said 379 workmen had also entered into separate individual settlements. Total payment made by the employer to the said 379 workmen was Rs.5,53,27,614/-. The said settlement was placed before the BIFR and considering the payments having been made, the BIFR allowed SSCL to withdraw the reference bearing case No.371/2001.
6. It is thereafter that the petitioner took over the entire Assets and liabilities of SSCL by transfer of shares and the name of SSCL came to be changed as NSL Sugars (Tungabharda) Private Limited. It is subsequent thereto, respondent No.3-C.S.Mohan representing himself as President of GSSK officials and employees' Association, had filed an appeal/petition dated 14.07.2008 before the Assistant Labour Commissioner and raised an industrial dispute by alleging that the settlement dated 2.04.2008 is illegal and unjust and to declare -7- WP No. 24331 of 2018 the same as void. The Asst. Labour Commissioner issued a notice, conciliation failed and the State Government, vide its order dated 25.09.2009 by holding the settlement was valid, refused to refer the matter to Labour Court for adjudication.
7. Respondent No.3 filed a writ petition before this Court W.P. No.33702/2009. When this Court set aside the order dated 25.09.2009 of the State Government and remanded the matter to the State Government for fresh consideration, vide its order dated 11.02.2011.
8. The State government on 5.05.2011, referred the industrial dispute to the Industrial Tribunal for a decision on two questions. The first question being as to whether Sri.C.S.Mohan proves that the management of SSCL has illegally obtained the signatures of the workmen on the settlement dated 2.04.2008. The second question of reference being as to whether the management of SCCL proves that -8- WP No. 24331 of 2018 the settlement dated 2.04.2008 does not violate any law.
9. The Industrial tribunal registered the dispute as ID No.155/2011, in the meanwhile, the petitioner had filed W.P.No.40521/2011 challenging order dated 29.09.2011 passed by the Deputy Commissioner, Chikkaballapur insofar as recovery certificates had been issued. There were several other writ petitions namely W.P. No.18022/2010, 44349/11 and 25119/2011. All the writ petitions came to be clubbed together and were disposed of by common order dt. 28.06.2012.
10. A coordinate bench of this Court kept the recovery certificate orders in abeyance until the disposal of ID No.155/2011 since the same constituted an integral part of the reference made.
11. The State government and liquidator had filed Writ Appeals in W.A. No.8116 and 8405-07/2012 and 6730/2012 wherein the petitioner had filed an undertaking that if the petitioner were to be handed -9- WP No. 24331 of 2018 over the assets of GSSK purchased by SSCL under sale dated 18.06.1988, the petitioner would not dispose or alienate assets of GSSK without the permission of the State Government.
12. The Division Bench of this Court, considering the affidavit of undertaking, disposed of the writ appeals vide order dated 25.03.2013 by directing the petitioner to comply with the undertaking issued, in the meanwhile, the Regular First Appeal in RFA No.550/2013 filed by liquidator also came to be dismissed on 1.04.2015.
13. It is in that background that SSCL had filed Form-QA on 18.02.2002 seeking permission for closure under Section 2(o) of ID Act which came to be rejected on 2.03.2002 and 3.04.2002 on the ground that copy of the closure form had not been served on the workers on the same day. On a writ petition being filed, the same came to be dismissed vide order dated 21.10.2006 and the writ appeal being filed in W.A.
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WP No. 24331 of 2018No.2184/2006, the endorsement was set aside and the matter was remitted to the State government.
14. The State Government once again rejected the said application on 28.09.2007 as regards which a review application was filed. In the meanwhile, the settlement with the workers happened on 2.04.2008 and as such, the application under section 25(O) became redundant and unnecessary and the review petition came to be withdrawn.
15. The proceedings which were pending before the Industrial Tribunal in I.D. No.155/2011 was taken up wherein an application under Section 11 of the ID Act came to be filed by the employer in IA No.6 requesting for closure of the said dispute since 379 of 381 workers had received settlement amounts and unless they deposited the said amount, the matter could not be taken up. The application being heard, came to be allowed by order of the tribunal dated 22.02.2014 and 379 workmen who had received the
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WP No. 24331 of 2018settlement amount were directed to deposit the amount received by them.
16. Respondent No.3 filed W.P.No.303/2015 challenging the order dated 22.02.2014 passed on IA-6 in ID No.155/2011. This court vide order dated 6.07.2015 dismissed the challenge made, but, however extending the period for deposit of amount granted by the tribunal by a period of one month by specifically observing that those of the workmen who failed to deposit the amount shall be disentitled to prosecute the reference further.
17. The ID being taken up for reporting compliance with the order passed by this court dt. 6.07.2015 in WP No.303/2015, the counsel for respondent No.5 - Union had requested for closure of the ID stating its members were not interested in depositing the money received and prosecuting the proceedings.
18. It is in that background, the tribunal vide its order dt. 4.011.2017 held that 379 workmen were disentitled to continue/prosecute the reference, but,
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WP No. 24331 of 2018however went on to hold that other 188 workmen who had not received any compensation from the petitioner, would be entitled to prosecute the reference, as per recovery certificate issued to 567 workmen.
19. Challenging the same, the petitioner filed W.P.No.5688/2018 only insofar as permitting 188 workmen to prosecute ID No.155/2011. When the said writ petition was pending the State government issued a corrigendum dated 5.3.2018 by virtue of which the State government had added, three additional questions to the reference, which are extracted hereunder:
1. The Sugar Factory Employees Union, Gauribidanur, Kolar District, representing the employees working in M/s Siraguppa Sugars & Chemicals, Gauribidanur has alleged that, the Management has obtained resignations of all the employees on 08-05-2005 which is not correct. Whether the Employees Union will establish that this Allegation as not correct?
2. Whether the President of the Union on behalf of employees, Sugar Mill Employees Union ® Gowribidanur and G.S.S.K. Officials & Employees Association ® Gowribidanur can establish that the Management of M/s. Siraguppa Sugars & Chemicals, Gowribidanuru, has closed that factory
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from 18-02-2022 although 567 employees are working in the factory, without obtaining permission from the Government as per Section 25(O) of Industrial Dispute Act, 1947?
3. If established, for what compensation the employees are eligible.
20. Thereafter, the petitioner received one more corrigendum dt. 17.03.2018 indicating only two further questions, which are extracted as under ;
1. Whether the President of the Union on behalf of employees, Sugar Mill Employees Union ® Gowribidanur and G.S.S.K Officials & Employees Association ® Gowribidanur can establish that the Management of M/s Siraguppa Sugars & Chemicals, Gowribidanuru, has closed the factory on 18-02- 2022 although 567 employees are working in the factory, without obtaining permission from the Government as per Section 25(O) of Industrial Dispute Act, 1947?
2. If established, for what compensation the employees are eligible?
21. It is aggrieved by the same that the petitioner is before this court seeking for the aforesaid reliefs.
22. Sri.K.N.Phanindra, learned Senior counsel for the petitioner would submit that:
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22.1. The issuance of corrigendum dt. 17.03.2018 is completely malafide and has been issued only at the behest of respondent No.3, respondent No.3 has sought to prevail upon respondent No.1 to issue the corrigendum, having failed in all the earlier proceedings. A Settlement having occurred with the Union and the counsel for the Union having categorically stated before the Labour Court that 379 workmen were not interested in re-depositing the money and contesting the matter, respondent No.3 has been abusing the process of the Court for his own benefit so as to put pressure on the petitioner-employer.
22.2. There is no basis for having referred two additional questions in a pending ID after a period of seven years which virtually changes the entire dispute which was not raised initially.
22.3. The dispute being only as regards 379 workmen, it is not permissible for respondent
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No.3 now to say that there are 577 workmen and as such, balance 188 workmen will continue the proceedings. There are no details as regards these of 188 workmen which have been produced at any point of time.
22.4. There were seasonal workers who were engaged by the petitioner for certain works to be rendered during a particular period of time, they do not qualify to be workmen of the petitioner for having rendered services occasionally.
22.5. The additional questions now referred to are completely different from that which had been referred to earlier. They are neither a clerical mistake nor a clarification of the earlier questions, totally new questions ought not to have referred by the State Government to the Tribunal.
22.6. The effect of the corrigendum is to include 188 alleged workers apart from 379 workers who
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WP No. 24331 of 2018are parties to the original dispute. The Union has categorically stated that the ID could be closed if at all there are 188 additional workmen, the Union would have never agreed for closure of the ID.
22.7. The entire sequence of events which has occurred for last couple of decades would indicate the trouble that the employer has been put to, on one hand workers not having permitted the employer to run the business, on the other hand now respondent NO.3 is not even permitting the closure when all the workers have received their dues.
22.8. It is on that basis he submits that the writ petition is to be allowed and the corrigendum be quashed thereby paving way for closure of ID No.155/2011.
22.9. He relies upon the following Judgments:
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22.10. National Engineering Industries Ltd. Vs. State of Rajasthan and Other1, more particularly paragraph Nos.23, 24, 27 and 28 which are reproduced hereunder for easy reference:
23. In Workmen v. Hindustan Lever Ltd. [(1984) 4 SCC 392 : 1985 SCC (L&S) 6] this Court said as under: (SCC p. 395, para 4) "4. Section 10(1) confers power on the appropriate Government to refer an existing or apprehended industrial dispute, amongst others, to the Industrial Tribunal for adjudication. The dispute therefore, which can be referred for adjudication, of necessity, has to be an industrial dispute which would clothe the appropriate Government with power to make the reference, and the Industrial Tribunal to adjudicate it."
24. It will be thus seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject-
matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in 1 [2000(1) SCC 371]
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WP No. 24331 of 2018existence or apprehended the appropriate Government lacks power to make any reference. A settlement of dispute between the parties themselves is to be preferred, where it could be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace than an award. Settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements it could be the subject-matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the Conciliation Officer must be fair and reasonable. A settlement which is sought to be impugned has to be scanned and scrutinised. Sub-sections (1) and (3) of Section 18 divide settlements into two categories, namely, (1) those arrived at outside the conciliation proceedings, and (2) those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has a limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has an extended application since it is binding on all the parties to the industrial disputes, 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. 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
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WP No. 24331 of 2018minority union which had objected to the same. The recognised union having the majority of members is expected to protect the legitimate interest of the labour and enter into a settlement in the best interest of the labour. This is with the object to uphold the sanctity of settlement reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. When a settlement is arrived at during the conciliation proceedings it is binding on the members of the Workers' Union as laid down by Section 18(3)(d) of the Act. It would ipso facto 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. The Act is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace. "This principle of industrial democracy is the bedrock of the Act," as pointed out in the case of P. Virudhachalam v. Lotus Mills [(1998) 1 SCC 650 :
1998 SCC (L&S) 342] . In all these negotiations based on collective bargaining the individual workman necessarily recedes to the background. Settlements will encompass all the disputes existing at the time of the settlement except those specifically left out.
27. The Industrial Tribunal is the creation of a statute and it gets jurisdiction on the basis of reference. It cannot go into the question on validity of the reference. The question before the High Court was one of jurisdiction which it failed to consider. A tripartite settlement has been arrived at among the Management, the Labour Union and the Staff Union. 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
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in the settlement. It is not the contention of the Workers' Union that the tripartite settlement is in any way mala fide. It has been contended by the Workers' Union that the settlement was not arrived at during the conciliation proceedings under Section 12 of the Act and as such was not binding on the members of the Workers' Union. This contention is without any basis as the recitals to the tripartite settlement clearly show that the settlement was arrived at during the conciliation proceedings.
28. The State Government failed to give due consideration to the direction of the High Court in its judgment dated 23-3-1989. The State Government also failed in its duty to bring to the notice of the High Court its notification dated 17-3- 1989 making the impugned reference. It appears to us that the reference had occasioned while the judgment had been reserved by the High Court. In any case it was expected of the State Government to bring to the notice of the High Court before making a reference its decision to make the reference. After the judgment had been announced and directions issued by the High Court to hear the appellant it was incumbent on the State Government, in the circumstances of the case, to recall the reference. It could not direct the appellant to raise its objection to reference before the Industrial Tribunal for which the Industrial Tribunal certainly lacked jurisdiction. The State Government before making the reference did not consider all the relevant considerations which would clothe it with the power to make the reference under Section 10 of the Act. We find substance in the submissions of Mr Pai. Wholesale reference of all the disputes in the charter of demands of the Workers' Union for adjudication was also bad inasmuch as many of such disputes were already the subject-matter of the tripartite
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WP No. 24331 of 2018settlement. This also shows non-application of mind by the State Government in making the reference.
22.11. By relying on the above judgment, it is submitted that while a reference was pending before the High Court as regards the validity of a reference already made, the state Government ought to have brought to the notice of the High Court its intention of making reference before making a reference. The present matter was pending while reference was made, it was incumbent on the State Government not to have referred any matter earlier reference being pending before the Industrial Tribunal. It was incumbent on the State Government to do the above, not having done so, the reference made is bad in law. 22.12. U.P State Road Transport Corporation vs. Babu Ram2 more particularly paragraph Nos.7, 2 [(2006) 5 SCC 433]
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WP No. 24331 of 20188 and 9 which are reproduced hereunder for easy reference:
7. So far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case.
8. However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty [(2000) 2 SCC 455 : 2000 SCC (L&S) 283 : AIR 2000 SC 839] it was noted at para 6 as follows : (SCC pp. 459-60) "6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-
matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were
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WP No. 24331 of 2018reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent."
9. In S.M. Nilajkar v. Telecom District Manager [(2003) 4 SCC 27 : 2003 SCC (L&S) 380] the position was reiterated as follows (at SCC pp. 39-40, para 17):
"17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar Works Ltd. v. Workmen [(1960) 1 SCR 150 : AIR 1959 SC 1217] that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute, it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an Industrial Tribunal; even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re-employment of most of the old workmen was held to be fatal in Shalimar Works Ltd. v. Workmen [(1960) 1 SCR 150 : AIR 1959 SC 1217] . In Nedungadi Bank Ltd. v. K.P. Madhavankutty [(2000) 2 SCC 455 : 2000 SCC (L&S) 283 : AIR 2000 SC 839] a delay of 7 years was held to be fatal and disentitled the workmen to any relief. In Ratan Chandra Sammanta v. Union of India [1993 Supp (4) SCC 67 : 1994 SCC (L&S) 182 : (1994) 26 ATC 228 :
1993 AIR SCW 2214] it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself;
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lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants to any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985- 86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Labour v. Union of India [(1988) 1 SCC 122 : 1988 SCC (L&S) 138 : (1987) 5 ATC 228 : AIR 1987 SC 2342] the Department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the Scheme. On 28-12-1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal-cum-Labour Court. We do not think that the appellants deserve to be non-suited on the ground of delay."
The above position was highlighted recently in Sudamdih Colliery of Bharat Coking Coal Ltd. v. Workmen [(2006) 2 SCC 329 : 2006 SCC (L&S) 306 : (2006) 1 Supreme 282] .
22.13. Though there is no particular time limit which has been prescribed under Section 10, it is required that the exercise of power under that provision by the appropriate government has to
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WP No. 24331 of 2018be done reasonably and in a rational manner. There is a long lapse of time as in this case, the delay would defeat the claim.
22.14. Man Singh vs. Maruti Suzuki India Limited and another3 more particularly paragraph Nos.6, 7 and 8, 24, 27 and 28 are reproduced hereunder for easy reference:
6. In Ramesh Chandra Sankla [(2008) 14 SCC 58 :
(2009) 1 SCC (L&S) 706] a number of workmen of Vikram Cement Company who had ceased to be the employees of the Company after accepting full benefits under the scheme of voluntary retirement moved the Labour Court under Section 31 of the Madhya Pradesh Industrial Relations Act, 1960 making the same allegations against the Company as the appellant in this case. In that case, the Labour Court declined to decide certain issues framed at the instance of the management as preliminary issues.
The management's appeal against the decision of the Labour Court not to decide those issues as preliminary issues was rejected by the Industrial Court. The writ petition filed by the management was dismissed by a learned Single Judge on the ground that the orders passed by the Labour Court and affirmed by the Industrial Court were interlocutory in nature. The management took the matter before the Division Bench which held that the writ petitions filed by the Company were under 3 [2011(14) SCC 662]
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WP No. 24331 of 2018Article 227 of the Constitution and the Single Judge was exercising supervisory jurisdiction; hence, intra- court appeals were not maintainable and the appeals filed by the Company were liable to be dismissed on that score alone. Even while holding that the management's appeals were liable to be dismissed as not maintainable, the Division Bench went on to hold that since the workmen had approached the Labour Court after having received the benefits under the scheme, it would be equitable to direct the employees concerned to return the benefits so received to the employer subject to the undertaking by the Company that in the event the Labour Court allowed the claim and granted benefits to the workmen, the same would be restored to them by the Company with interest @ 6% per annum.
7. The workmen challenged the order of the Division Bench before this Court inter alia on the ground that having held that the management's appeals were not maintainable, the Division Bench had no jurisdiction to make the impugned direction. This Court repelled the workmen's contention and in paras 100 and 101 of the decision held and observed as follows:
(Ramesh Chandra Sankla case [(2008) 14 SCC 58 :
(2009) 1 SCC (L&S) 706] , SCC pp. 90-91) "100. Even otherwise, according to the workmen, they were compelled to accept the amount and they received such amount under coercion and duress. In our considered opinion, they cannot retain the benefit if they want to prosecute claim petitions instituted by them with the Labour Court. Hence, the order passed by the Division Bench of the High Court as to refund of amount cannot be termed unjust, inequitable or improper. Hence, even if it is held that a 'technical' contention raised by the workmen has some force, this Court which again exercises discretionary and equitable jurisdiction under Article 136 of the Constitution, will not interfere with a
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direction which is in consonance with the doctrine of equity. It has been rightly said that a person 'who seeks equity must do equity'. Here the workmen claim benefits as workmen of the Company, but they do not want to part with the benefit they have received towards retirement and severance of relationship of master and servant. It simply cannot be permitted. In our judgment, therefore, the final direction issued by the Division Bench needs no interference, particularly when the Company has also approached this Court under Article 136 of the Constitution.
101. For the foregoing reasons, in our opinion, the order passed by the Division Bench of the High Court deserves to be confirmed and is hereby confirmed. The payment which is required to be made as per the said order should be made by the applicants intending to prosecute their claims before the Labour Court, Mandsour. In view of the fact, however, that the said period is by now over, ends of justice would be served if we extend the time so as to enable the applicants to refund the amount. We, therefore, extend the time up to 31-12-2008 to make such payment. We may, however, clarify that the claim petitions will not be proceeded with till such payment is made. If the payment is not made within the period stipulated above, the claim petitions of those applicants will automatically stand dismissed. The Labour Court will take up the claim petitions after 31-12-2008."
8. The present case is squarely covered by the decision of this Court in Ramesh Chandra Sankla [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706] . We, thus, find no merit in the submission made on behalf of the appellant that the High Court had no jurisdiction to make a direction for refund of the entire amount received by the appellant as a condition precedent for the reference to proceed.
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WP No. 24331 of 201822.15. By relying on the above, he submits that whenever a workman has received certain benefits under a settlement and if that settlement is challenged, it would be required for the benefits to be refunded to the employer, that is to say all monies received by the workmen are to be returned to the employer. Without such refund of the amounts, the workmen could not raise a dispute that they had not agreed to the settlement.
22.16. Ranjit Sagar Dam v. Sham Lal4, more particularly paragraph Nos. 9, 10 and 11 are reproduced hereunder for easy reference:
9. So far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on the facts of each individual case.
10. However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. v.
K.P. Madhavankutty [(2000) 2 SCC 455 : 2000 SCC 4 [(2006) 9 SCC 124]
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WP No. 24331 of 2018(L&S) 283] it was noted at para 6 as follows : (SCC pp. 459-60) "6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject- matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent."
11. In S.M. Nilajkar v. Telecom District Manager [(2003) 4 SCC 27 : 2003 SCC (L&S) 380] the position was reiterated as follows (SCC at pp. 39-40, para 17):
"17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the
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appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar Works Ltd. v. Workmen [(1960) 1 SCR 150 : AIR 1959 SC 1217] that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute, it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an Industrial Tribunal; even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re-employment of most of the old workmen was held to be fatal in Shalimar Works Ltd. v. Workmen [(1960) 1 SCR 150 : AIR 1959 SC 1217] . In Nedungadi Bank Ltd. v. K.P. Madhavankutty [(2000) 2 SCC 455 : 2000 SCC (L&S) 283] a delay of 7 years was held to be fatal and disentitled the workmen to any relief. In Ratan Chandra Sammanta v. Union of India [1993 Supp (4) SCC 67 : 1994 SCC (L&S) 182 : (1994) 26 ATC 228] it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants to any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated some time in 1985- 86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Labour v. Union of India [(1988) 1 SCC 122 : 1988 SCC (L&S) 138 : (1987) 5 ATC 228] the
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Department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the Scheme. On 28-12-1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal-cum- Labour Court. We do not think that the appellants deserve to be non-suited on the ground of delay."
The above position was highlighted recently in Sudamdih Colliery of Bharat Coking Coal Ltd. v. Workmen [(2006) 2 SCC 329 : 2006 SCC (L&S) 306 : (2006) 1 Supreme 282] .
22.17. By relying on the above, he submits that the order dated 17.03.2018 being a further reference order passed by the appropriate government, the said reference cannot be challenged. It is only after a finding is rendered by the Industrial Tribunal, if aggrieved, the same could be challenged by any of the parties.
23. Sri.C.S.Mohan-respondent No.3 who claims to be the President of the Sugar Mills Employees Union submits that,
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WP No. 24331 of 201823.1. The government could amend, add other questions at any point of time, there is no restriction on the power of the government to refer additional questions, if it deems fit. 23.2. Neither himself nor 187 other workmen have received any amounts, thereby question of them depositing the amounts would not arise, they are entitled to prosecute the recovery certificate issued by the Deputy Commissioner so as to get their just dues insofar as 188 workers are concerned.
23.3. The additional questions referred by way of corrigendum are essential for the resolution of disputes between the employer and the workmen inasmuch as the factory came to be closed on 18.02.2002 without obtaining permission from the government as per Section 25(O) of the ID Act. Since there is no such permission on record, the reference being proper, the petitioner ought not to have
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WP No. 24331 of 2018challenged the same and this Cout ought not to intercede in the mater and petition requires to be dismissed.
23.4. He placed reliance on the following Judgments:
23.5. Dena Bank v. D.V. Kundadia5, more particularly paragraph No.2 which is reproduced hereunder for easy reference:
"2. It is well settled by this Court that no writ should be entertained against an interim order of the Labour Court or the Industrial Tribunal. It is only when a final award is given, then a party should be allowed to challenge it if he is aggrieved."
23.6. Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal6, more particularly paragraph No.6 which is reproduced hereunder for easy reference:
6. Section 10(1) of the Act confers power on the appropriate Government to refer at any time any industrial dispute which exists or is apprehended to the authorities mentioned in the section for adjudication. The opinion which the appropriate 5 [(2011) 15 SCC 690] 6 [(1979) 1 SCC 1]
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Government is required to form before referring the dispute to the appropriate authority is about the existence of a dispute or even if the dispute has not arisen, it is apprehended as imminent and requires resolution in the interest of industrial peace and harmony. Section 10(1) confers a discretionary power and this discretionary power can be exercised on being satisfied that an industrial dispute exists or is apprehended. There must be some material before the Government on the basis of which it forms an opinion that an industrial dispute exists or is apprehended. The power conferred on the appropriate Government is an administrative power and the action of the Government in making the reference is an administrative act. The formation of an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. Thus the jurisdictional facts on which the appropriate Government may act are the formation of an opinion that an industrial dispute exists or is apprehended which undoubtedly is a subjective one, the next step of making reference is an administrative act. The adequacy or sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. If the action of the Government in making the reference is impugned by a party it would be open to such a party to show that what was referred was not an industrial dispute and that the Tribunal had no jurisdiction to make the Award but if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before Government on which it could have come to an affirmative conclusion on those
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WP No. 24331 of 2018matters (see State of Madras v. C.P. Sarathy [(1952) 2 SCC 606 : AIR 1953 SC 53 : 1953 SCR 334 :
(1953) 1 LLJ 174 : (1952-53) 4 FJR 431] ).
23.7. By relying on the above, he submits that so long as Industrial dispute is pending any and all further questions could be referred to the Tribunal for adjudication.
23.8. M/s Western India Match Co. Ltd. V. Workers Union7, more particularly paragraph No.7 which is reproduced hereunder for easy reference:
7. The next question is whether the expression "at any time" in Section 4(k) means what its literal meaning connotes, or whether in the context in which it is used it has any limitations. Counsel for the company argued that the concerned workman was admittedly not a member of the respondent union in the beginning of 1959 when the State Government refused to make the reference, that he became a member of the respondent-union in July 1962, that it was thereafter that the respondent-
union revived the said dispute which had ceased to be alive after the Government's said refusal and that it was at the instance of the union that the 7 [(1970) 1 SCC 225]
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WP No. 24331 of 2018Government later on changed its mind and in August 1963 agreed to make the reference. The contention was that the Government, having once declined to refer the dispute, could not change its mind after a lapse of nearly six years after the dispute arose and that though the expression "at any time" does not apparently signify any limit, it must be construed to mean that once the Government had refused to make the reference after considering the matter and the employer thereupon had been led to believe that the dispute was not to be agitated in a tribunal and had consequently made his own arrangement, the Government cannot, on a further agitation by the union, take a somersault and decide to refer it for adjudication. It was argued that if it were so, it would mean that even If a workman, who after termination of his service, has already obtained another employment, can still go to the union, become its member and ask the union to agitate the dispute by espousing it. Such an action, if permitted, would cause dislocation on the industry as when the employer has in the meantime made his own arrangement by appointing a substitute in place of the dismissed workman in finding that the latter had already found other employment. The Legislature, the argument proceeded, could not, therefore, have used the words "at any time" to mean after any length of time.
23.9. By placing reliance on the above, he submits that usage of the word 'at any time in Section 4(k) would have to be given its literal meaning and as such, any fresh dispute could be raised by the workman at any point of time and the
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WP No. 24331 of 2018reference can be made by the appropriate government to the Industrial Tribunal at any point of time. Such reference cannot be questioned by the employer.
23.10. State of Maharashtra v. Kamani Employees' Union8, more particularly paragraph Nos.11 and 12 which are reproduced hereunder for easy reference:
11. We are not inclined to accept the view of the High Court that the reference dated January 18, 1964, in any manner interferes with the powers of the Tribunal in adjudicating upon Demand 3 covered by the reference dated December 19, 1962. In fact, in our view, the question that has been further referred by order dated January 18, 1964, is really a matter connected with or relevant to Dispute 2 already pending adjudication before the tribunal. The tribunal had full jurisdiction when dealing with Demand 3 covered by the order dated December 19, 1962, to consider the report mentioned in the subsequent reference dated January 18, 1964. It had full power to consider as to in what manner and to what extent the modification is to be effected in the incentive scheme obtaining in the company. In fact, even without the second reference, the Tribunal, when dealing with Demand 3 of the first reference, could have also considered the question of adopting the scheme evolved by Ibcon Private Limited, because it was a relevant matter; and also 8 Bombay LAWS(SC)- 1973-4-70
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connected with the production bonus scheme. When it was so open to the Tribunal to consider the scheme of Ibcon, the fact that the Government specifically referred for consideration the said scheme, makes no difference. At any rate the question covered by the second reference was a matter "connected with or relevant" to Dispute 3 of the first reference and hence the State was well within its jurisdiction under Section 10(1)(d) of the Industrial Disputes Act in passing the order dated January 18, 1964. The High Court has referred to various decisions regarding the powers of the Government, when making a reference, which, in our opinion, it is not necessary to consider, in the view that we take regarding the nature of the reference dated January 18, 1964.
12. In the result, the judgment and order of the High Court are set aside. The Tribunal will proceed to adjudicate on the question pending before it regarding the revision of the existing production bonus scheme. As the original reference itself is of the year 1962, the Tribunal will give a very expeditious disposal to this matter. The appeal is accordingly allowed. There will be no order as to costs.
23.11. By placing reliance on the above, he submits that mere reference of a dispute or question to the Tribunal does not amount to adjudication thereof. The Industrial Tribunal would decide the matter on the basis of the evidence on record. No person can challenge an order of
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WP No. 24331 of 2018
reference made by the appropriate
government.
23.12. Abdu Rehiman Haji v. Abdul Rahiman9, more particularly paragraph Nos.1, 2 and 3 which are reproduced hereunder for easy reference:
In connection with the denial of work to the 1st Respondent, claimed by the petitioner to be merely its customer, the question seems to have engaged the attention of the Government as to whether a reference had to be made for adjudication to the Labour Court. By Ext. P1 order dated 2-5-1977, the Government refused to refer the matter. But it seems to have had second thought on the question; and by the impugned order Ext P2, dated 30-6-1977, chose to refer the dispute for adjudication to the Labour Court, Quilon. In view of the recent decision of the Supreme Court in Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, Hariyana ((1979) 1 SCC 1 : AIR. 1979 SC. 170 : 1979 (1) L.L.J. 1), Counsel for the petitioner very fairly stated that it cannot usefully urge the contention that Ext. P1 order will be a bar to the Government's exercising the right of reference over again or in its reversing its original conclusion that there was no ground to make a reference, and in holding to the contrary. As was pointed out by the Supreme Court in the recent decision, and even on earlier occasions, by the exercise of the power once, the source of the power 9 LAWS (KER) 1979-9-7
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is not dried up, so as to prevent or preclude its exercise on a second or a subsequent occasion. Also, the reference of the dispute being essentially dependent upon the existence or the apprehension of an industrial dispute, nothing prevents these conditions springing up, although they stood not satisfied a moment before. Therefore nothing turns on the question of the Government having decided to make the reference for adjudication of a dispute, which, some time previously, it held unworthy of reference. But, what was stressed by Counsel for the petitioner was, that if it does decide to make the reference, particularly in the background of the facts practically admitted in this case, the Government had an obligation to observe the rules of fairplay and to afford the petitioner an opportunity for explanation. There is no controversy that the subsequent order Ext. P2 referring the dispute was prompted by the intervention of the Secretary of the Union, who seems to have taken up the matter with the Minister of Labour. The petitioner's grievance is that in respect of the representation thus made by the Union to the Minister, the petitioner should have been afforded an opportunity for explanation to satisfy the Minister that there was no case for reference of the dispute for adjudication. The contention thus advanced by the petitioner's Counsel stands directly covered against the petitioner by a Division Bench ruling of this Court in E.T. Varghese v. Secretary, Estate Staff's Union of South India (1976 K.L.T. 842). After discussing the position, the Division Bench observed:
"5 When the administrative action is such as is contemplated by the provisions of the statute in S. 10(1) the interference must be even more limited and we do not think that the development of the law has in any way whittled down the well-established principles in regard to the scope of interference in such matters. We do not think this Court would be
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justified in interfering with an order of reference under S. 10(1) on the mere ground that the order has been passed after an earlier order refusing to refer without being given an opportunity to the employer to state his case why the earlier view taken by the Government should not be altered."
2. Counsel for the petitioner rightly stressed before us that the above observations were obiter, as the Division Bench in the immediately following paragraph clearly found that the petitioner had been given ample opportunity to state his case. While this is undoubtedly so, the principle stated by the Division Bench, is worthy of notice. The principle is also supported by other decisions, such, for instance, as the decision of the Karnataka High Court in Kirloskar Electric Company Limited's case (1974 (2) LLJ 437). Counsel for the petitioner invited our attention to the pronouncement by a Division Bench of the Madras High Court in Tiruchy Steel Rolling Mills Ltd. v. S. Gnanasambandan(1974) (1) Factories Journal Reports P. 158.) The Division Bench there, no doubt, took the view on the special facts proved, that a reference for adjudication should have been made only after affording the aggrieved petitioner an opportunity for explanation.
3. It is enough for us to state that we are not prepared to go so far and to lay down such a universal principle. We do not think the decisions of the Supreme Court cited by Counsel for the petitioner or the passages from the treatises which were freely indented oblige us to go to this extent. Counsel for the respondent, besides inviting our attention to Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, Haryana ((1979) 1 SCC 1 : AIR. 1979 SC. 170) also referred us to the earlier pronouncement in Western India Watch Co. Ltd. v. The Western India Watch Co. Workers Union ((1970) 1 SCC 225 : AIR. 1970 SC. 1205) (para. 9) and
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WP No. 24331 of 2018Mahabir Jute Mills Ltd. Gorakhpur v. Shibban Lal Saxena ((1975) 2 SCC 818 : AIR. 1975 SC. 2057). Both these decisions state the principle that a prior refusal to refer a dispute for adjudication will not be a bar to the Government's making a reference subsequently. There is a decision of a Division Bench of the Andhra High Court in Srikrishna Jute Mill's case (1977 (2) L.L.J. 363) which is directly in point in regard to the position that arises for determination here. It was there ruled that if the Government chose to reconsider its earlier decision not to refer the dispute for adjudication, it was not necessary to give notice to the employer of the proposed action, because no civil rights of any parties are being adjudicated upon. Of a principle, the position thus stated seems to be correct; because the Government is only weighing the position in order to be satisfied whether an industrial dispute can be said to exist or is apprehended. In these circumstances, we see no ground to interfere with the impugned order Ext. P2. We dismiss the writ petition with no order as to costs.
23.13. Jupiter Cashew Company, Quilon v. State of Kerala10, more particularly paragraph Nos.7, 9 and 10 which are reproduced hereunder for easy reference:
7. The counsel appearing on either side relied on a catena of decisions rendered by the Supreme Court as well as the High Courts in support of their respective contentions; but we do not think it necessary to refer to all these decisions, as some of the points arising for determination have been 10 LAWS(KER) -1981-12-3
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concluded by authoritative pronouncements of the Supreme Court. The learned Addl. Advocate General appearing on behalf of the State and the counsel appearing for the third respondent submitted that there is no valid ground or reason to interfere with the judgment of the learned Single Judge; that there were fresh materials before the Government at the time when they passed Ex. P-3 order: that before making a reference under Section 10 of the Act, the employer is not entitled to any notice or hearing and that the Government was satisfied that there was a prima facie case for reference.
9. To sum up, the position of law is definite and clear that there is no legal or statutory bar for the appropriate Government to make a reference under Section 10(1) of the Act in respect of the same industrial dispute which it declined to refer on an earlier occasion that it is not absolutely necessary that there ought to be some fresh facts or materials before the Government for reconsideration of its earlier decision. On a reading of Ex. P-3 order under challenge along with the counter affidavit filed on behalf of the Government, it cannot be said that there were no fresh facts or materials before the government for reconsideration of the earlier decision and that no reason has been given for the reconsideration in Ex. P-3 order.
10. The next point for consideration is whether Ex. P-3 order has been vitiated by violation of the cardinal principles of fairply and natural justice. The counsel for the appellant submitted that Ex. P-3 order was passed without issuing any notice or giving a hearing to the employer. There is nothing in the statute which enjoins or indicates that the appropriate Government should issue notice or give pre-decisional hearing to the person affected before action under Section 10(1) of the Act is made. This Court has consistently taken the view that there was
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WP No. 24331 of 2018no necessity of issuing a notice or giving any hearing to the person affected before taking action under Section 10(1) of the Act. In Varghese v. Secretary, Estate Staffs Union( [1976 K.I.T. 84???.] ), a Division Bench of this Court held that it is not obligatory on the part of the Government to give reasons while referring a dispute under Section 10(1), and that the Court cannot consider the sufficiency of the material before the Government. It was further held that there was no obligation on the part of the Government to conform to any particular procedure to hear an employer before taking a view different from the one taken earlier by the Government in refusing to refer a dispute and that the Court would not be justified in interfering with an order of reference under Section 10(1) on the mere ground that the order has been passed after an earlier order refusing to refer without being given an opportunity to the employer to state his case why the earlier view taken by the Government should not be altered. In a later decision in Abdul, Rehiman Haji v. Abdul Rahiman ([1980 K.L.T. 16.]), a Division Bench of this Court held that if the Government chose to consider its earlier decision not to refer the dispute for adjudication, it was not necessary to give notice to the employer of the proposed action, because no civil rights of any parties are being adjudicated upon. By the mere making of a reference under Section 10(1) of the Act it cannot be said that any rights of the parties have been affected. There is no obligation on the part of the Government to hear an employer on a view taken different from the one taken by it earlier in refusing to refer a dispute. 23.14. By placing reliance on the above, he submits that there is no legal or statutory bar for the appropriate government to make a reference
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WP No. 24331 of 2018under Section 10(1) of I.D.Act in respect of the same industrial dispute which it had declined to refer on an earlier occasion though there is nothing which enjoins or indicates that the appropriate government should issue notification or give opportunity of hearing before passing an order of reference under Section 10(1) of ID Act. By mere making reference under Section 10(1), no rights of the parties were affected and as such the petitioner cannot maintain the above petition. 23.15. Ajaib Singh v. Sirhind Coop. Marketing-
cum-Processing Service Society Ltd.,11 more particularly paragraph No.10 which is reproduced hereunder for easy reference:
10. It follows, therefore, that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Act and 11 AIR 1999 SC 1351
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that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. The court may also in appropriate cases direct the payment of part of the back wages instead of full back wages. Reliance of the learned counsel for the respondent management on the Full Bench judgment of the Punjab and Haryana High Court in Ram Chander Morya v. State of Haryana [(1999) 1 SCT 141 (P&H) : ILR (1999) 1 P& H 93 (FB)] is also of no help to him. In that case the High Court nowhere held that the provisions of Article 137 of the Limitation Act were applicable in the proceedings under the Act. The Court specifically held "neither any limitation has been provided nor any guidelines to determine as to what shall be the period of limitation in such cases". However, it went on further to say that "reasonable time in the cases of labour for demand of reference or dispute by appropriate Government to labour tribunals will be five years after which the Government can refuse to make a reference on the ground of delay and laches if there is no explanation to the delay".
We are of the opinion that the Punjab and Haryana High Court was not justified in prescribing the limitation for getting the reference made or an application under Section 33-C of the Act to be adjudicated. It is not the function of the court to
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WP No. 24331 of 2018prescribe the limitation where the legislature in its wisdom had thought it fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal views of the Judges presiding over the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the period of limitation for the purposes of invoking the jurisdiction of the courts/boards and tribunal under the Act. 23.16. By placing reliance on the above, he submits that considering that there is any delay in raising the dispute referred to in Annexure-A, the said delay cannot come in the way of the workmen getting their just reliefs. Whenever aspects relating to Section 33(c) of ID Act have to be adjudicated, no limitation period has been prescribed or applied.
23.17. Manager, Rashtradoot Dainik Press v.
Rajasthan Samachar Patra Karmachari
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WP No. 24331 of 2018Sangh 12 , more particularly paragraph No.12 which is reproduced hereunder for easy reference:
12. Another decision relied upon by the learned counsel for the petitioner is Dalmia Dadri Cement, Ltd. v. Punjab State [A.I.R. 1966 Punj. 214], where the learned Judges thought that the view taken by Banerjee, J, in Kesoram Cotton Mills case [A.I.R. 1963 Cal. 348] (vide supra), was too narrow, while the view taken by Venkatarama Aiyar, J., in South India Estate case [A.I.R. 1955 Mad. 45] (vide supra) and arjoo Prasad, C.J., in Jaipur Spinning and Weaving Mills case [I.L.R. (1961) 11 Raj 434] (vide supra), was considered to lay down the proposition too broadly and it was observed that it was neither possible nor proper to lay down definitely the circumstances in which it is open to the State Government to amend or not to amend any clerical or other errors in the original notification issued under S. 10(1) of the Act. Thus it appears that their Lordships of the Punjab High Court left the matter at large, to be decided on the facts and circumstances of each case, and did not precisely lay down a definite proposition of law in this matter. As I have already observed above, in the present case, the subsequent order issued by the State Government does not supersede or cancel the reference already made by it by the earlier notification, dated 30 August, 1969, and has not the effect of revoking or putting at naught the reference already made, but it is in the nature of an addition or clarification or amplification of the reference originally made by the 12 LAWS(RAJ) 1977, 22
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State Government on 30 August, 1969, the dispute relating to the workmen employed in the printing work carried on in the specified printing presses on contract basis was referred for adjudication to the Industrial Tribunal. However, it appears that before the Industrial Tribunal the question was raised as to whether the reference included the workmen who were employed in the printing department only of the aforesaid printing presses or also the workmen employed in the composition department of such printing presses as well. While the employees in the statement of their case asserted that the case of workers employed on contract basis in the printing presses, both in the printing department as well as the composition department was referred, the employers on the other hand, contended that only the case of the workers employed to the printing department of the concerned printing presses was referred. The State Government, in order to clarify the position issued the corrigendum notification, dated 16 March, 1970, making it dear thereby that the word "printing" referred to in the original order of reference included the work of composition and printing, etc., carried on in the concerned printing presses. I am unable to hold, in these circumstances, that the subsequent notification, dated 16 March, 1970, which was merely of a clarificatory nature and had only supplemented or amplified the matter, was passed without jurisdiction. It is not disputed that the workmen employed in the composition department were employees of the same establishments, whose disputes were already referred by the earlier order of reference, dated 30 August, 1969, for adjudication to the Industrial Tribunal and if under the provisions of Sub-sec. (5) of S. 10 of the Act, similar cases of different establishments could be referred, there is no reason to hold that similar cases of workmen employed in other departments of the same establishments could
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WP No. 24331 of 2018not be referred, by making an amendment in the nature of addition to the earlier order of reference. 23.18. By placing reliance on the above Judgments, he submits that it is not only 379 workers but 188 workmen whose disputes are required to be referred to and it is for this reason that a reference of disputes as regards the entire fraternity of workmen viz. 567 workmen is being referred to the Industrial Tribunal which cannot be found fault with.
24. By way of a rejoinder, Sri.K.N.Phanindra would submit that an application having been made under Section 25(O) of ID Act which had been refused and a Review Petition having been filed, during the pendency of which settlement had occurred, upon the settlement having been arrived at, the Review Petition was withdrawn since all the workers who had entered into a settlement had submitted their resignation. There being no workers, the question of continuance of the review petition as regards
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WP No. 24331 of 2018permission under Section 25(O) of ID Act would not at all arise. Thus, even on merits he submits that the question is completely redundant and the corrigendum has been issued at the sole behest of respondent No.3.
25. Heard Sri.K.N.Phanindra, learned Senior counsel for Smt.Vaishali Hegde, learned counsel for the petitioner, Sri.Bhojegowda T.Koller, learned AGA for respondents No.1 and 2, Sri.C.S.Mohan, party-in- person for respondent No.3 and Sri.V.S.Naik, learned counsel for respondent No.4. Respondent No.4, though served remained absent.
26. The points that arise for consideration are:
1. Whether once a reference has been made, the appropriate Government can issue a corrigendum referring further disputes to the Industrial tribunal?
2. Whether once a full and final settlement has been arrived at by the Union, could a further dispute be raised by the Union or any of the workers individually?
3. Whether the non-deposit of the settlement amounts by the persons who have received the settlement amounts would
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disentitle any remaining workers from questioning the settlement?
4. What order?
27. ANSWER TO POINT Whether once a No.1:
reference has been made, the appropriate Government can issue a corrigendum referring further disputes to the Industrial tribunal ?
27.1. The purpose of reference by the Government of any industrial dispute is for the resolution of the dispute in a manner known to law so as to maintain industrial peace and tranquility. There is no embargo for the government to refer any further issues or dispute to the Industrial Tribunal nor is there any enabling provision.
27.2. In such a situation, I am of the considered opinion that in the event of there being any particular requirement to refer a dispute or further question to the industrial Tribunal, the appropriate government would be entitled to do so. However, the appropriate government would have to take into consideration the
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relevant aspects to ascertain if the same is still a live lis or not.
27.3. It is however required that the corrigendum, if any, is also issued at the earliest and not belatedly. Needless to say that by way of corrigendum, a dead issue cannot be brought to life. As held in Babu Ram's case (supra2) power of reference cannot be exercised at any point of time to revive dead matters. A dispute which is stale could not be subject matter of reference under Section 10 of the I.D. Act. A settlement having occurred between the Union and the workmen it can only be said that the dispute is non-existent and/or stale. Merely because some of the workmen were not happy with the settlement would not give rise to a reason to revive the said dispute.
27.4. The appropriate government also ought to have taken into consideration that the industrial dispute which had been referred had been
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WP No. 24331 of 2018adjudicated upon by the labour Court and was under challenge before this Court when the matter is pending before this Court, the appropriate government ought to have atleast made an application before this Court seeking for permission, if any, to refer further questions of dispute as held by the Hon'ble Apex Court in National Engineering Industries Ltd.'s case (supra1).
27.5. Hence I answer point No.1 by holding that the appropriate Government is empowered to issue a corrigendum or refer additional issues to the Industrial Tribunal for resolution. The appropriate government to take into consideration the factors above mentioned while doing so. Such a reference cannot be a mechanical reference or merely because additional dispute were raised by one of the parties.
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28. ANSWER TO POINT No.2: Whether once a full and final settlement has been arrived at by the Union, could a further dispute be raised by the Union or any of the workers individually? 28.1. Whenever there is a full and final settlement arrived at between the employer and majority Union, the same would be binding on all the workmen in the establishment including the minor Unions. Once the Union has arrived at a settlement of the dispute, the question of the Union or any of the workers raising a very same dispute is not permissible.
28.2. In the present case, it is clear that an amicable settlement was entered into between the employer and the Union on 2.04.2008 which covered the recovery certificates issued by the Commissioner for Labour and Deputy Labour Commissioner -cum-Recovery Officer and all other disputes between the Management and the workmen. The Union has not come forward to question the settlement, infact the Union has
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WP No. 24331 of 2018remained unrepresented in the present matter. It was only Mr.Mohan who claims to be a workman and President of one Union who has sought to contend that the dispute is still pending.
28.3. This issue having been earlier raised by Mr.Mohan before the State government, the State government had referred the matter to the Industrial Tribunal where an application being filed under Section 11 of the I.D. Act, the workman who had received amounts under the settlement were required to deposit the same with the Court for their disputes to be taken up, the said 379 workman did not do so and it is in that background that there is no lis which needs to be adjudicated.
28.4. Mr.C.S.Mohan had filed W.P. NO.303/2015 challenging the order dated 22.02.2002 passed by the Industrial Tribunal and this Court vide order dated 6.07.2015 had dismissed the
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WP No. 24331 of 2018petition by extending the period for deposit of amount by a period of one month. Despite the extension being granted no deposit was made, and as such the Tribunal vide its order dated 4.11.2017 held that 379 workmen were disentitled to continue and prosecute the reference but however held that since other 188 workers had not received any compensation, they would be entitled to prosecute the reference. It is then the said order was challenged by the workmen in W.P.No. 5688/2018. It is when the said writ petition was pending a corrigendum came to be issued on 5.03.2018. It is not known as to what happened to that corrigendum, but another corrigendum came to be issued on 17.03.2018 which is the subject matter of the present petition.
28.5. The additional disputes which are sought to be referred to Industrial Tribunal are, whether the
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WP No. 24331 of 2018Sugar Mill could be closed on 18.2.2022 though 567 employees are working in the factory without obtaining permission from the government under Section 25(O) of the ID Act ?
28.6. While considering this aspect, the government has not taken into consideration the disposal of the proceedings in ID No.155/2011 and the challenge made thereto in W.P.No.5688/2018. In fact when an order has been passed in I.D. No.155/2011 stating that 379 workmen would not be entitled to prosecute the same, the question of the government once again referring to the Industrial Tribunal a dispute of 567 employees would not arise.
28.7. Be that as it may the order under challenge in W.P.No.5688/2018 is as regards the 188 workmen sought to be recognized by the Industrial Tribunal which also has not been taken into consideration by the State
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Government. Thus, though the State government has the power of reference, these aspects not being taken into consideration once a final settlement has been arrived at between the union and the management, a further dispute cannot be raised by the Union or workers individually by seeking for a further reference of a question which has already been settled, the same in my considered opinion would amount to abuse of process of law. There is absolutely no evidence on record in so far as these alleged 188 workmen are concerned, as such their very existence has not been established.
28.8. Hence, I answer point No.2 by holding that once a full and final settlement has been arrived at and the other dispute which is covered under the said settlement cannot be raised either by the Union or any of the workers individually nor could the same be referred by
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WP No. 24331 of 2018the appropriate Government to the Industrial Tribunal.
29. ANSWER TO POINT No.3: Whether the non-
deposit of the settlement amounts by the persons who have received the settlement amounts would disentitle any remaining workers from questioning the settlement? 29.1. The recovery certificate which had been issued by the Recovery Officer was the subject matter of negotiation between the employer and the workmen. A perusal of the settlement deed which has been arrived at would clearly and categorically indicate that the subject matter of the recovery certificate has been settled with the Union. Thus, the Recovery certificate has spent itself on account of the settlement arrived at between the parties and the same could not be raised once again by either the Union or any of the workers like Mr.C.S.Mohan either before the labour Court or before the government for reference. Once a settlement has been arrived at it is for all the workmen to approach the
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WP No. 24331 of 2018employer for payment and 379 workmen have approached and got paid. Despite a direction being issued to them to deposit the amounts before the labour Court in order to continue the challenge, no said deposit has been made, thus indicating that they are not interested in prosecuting the matter.
29.2. The claim of Mr.Mohan that there are 188 other workmen who have a claim of certain monies against the employer which claim has in fact not been made by them. It all they have any claim for any money, they could always approach the employer for payment thereto which could be considered by the employer in accordance with law.
29.3. Thus, it is clear that once 379 persons refused to deposit the amount in I.D. No.155/2011, said proceedings came to an end. The reference being made on the earlier occasion relating to 379 workmen having spent itself, the State
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WP No. 24331 of 2018government could not have issued a corrigendum referring the very same dispute to the Tribunal this time adding few more workers.
29.4. The 379 workmen having refused to deposit the amount after having received a sum in furtherance of settlement arrived at a settlement being acceptable to 379 workmen is established. It is for this reason that this Court, as also the Industrial Tribunal came to a conclusion that without deposit of the benefits received, no party can adjudicate the said issues. A party cannot receive benefits and then question the transaction. Though the contention of Sri.C.S.Mohan is that there are 188 more workmen who are allegedly not agreeable to the settlement, the same would not hold this Court much longer inasmuch as the settlement arrived at, accepted and acted upon cannot now be split into two by holding that insofar as 379 workmen, the settlement is valid and insofar as 188
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WP No. 24331 of 2018workmen settlement is not valid. The settlement having been arrived at between the recognized Union and the employer would be binding on all other Union and all other workmen of the employer. Merely because few of the workmen are not happy with the settlement and or have other requirement, cannot be a ground to unsettle the valid settlement which has been arrived at between the employer and the workmen. It at all these 188 workmen were to establish that they are the workmen, they can claim in terms of the settlement agreement. However, the contention of Sri.Phanindra, learned Senior counsel is that out of 188 workmen who are allegedly represented by Sri.C.S.Mohan are no perennial workers, but are temporary workers who were engaged by the petitioner from time to time for certain seasonal works and are not permanent workmen of the employer. This factor not having been established by these alleged 188
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WP No. 24331 of 2018workmen and there being nothing on record to establish otherwise, I am of the considered opinion that the claim which has been made by these 188 workmen is also not proper and correct. The non-deposit of the settlement amount by majority of the persons viz., 379 workmen would amount to a settlement being arrived at and acted upon by all the parties and such a settlement would disentitle the alleged remaining workers from questioning the settlement.
30. ANSWER TO POINT No.4: What order?
30.1. In view of the above, the writ petition is allowed. 30.2. Certiorari is issued, the order dated 17.03.2018 bearing No.Ka.E 277 IDM 2011 passed by respondent No.1 is hereby quashed.
Sd/-
JUDGE LN.