Patna High Court
Eastern Manganese And Mineral, Ltd. vs Industrial Tribunal (Central) And Ors. on 8 April, 1968
Equivalent citations: (1968)IILLJ817PAT
ORDER S.N. Jha, J.
1. This is an application under Articles 226 and 227 of the Constitution of India for quashing an award of the Industrial Tribunal (Central), Dhanhad, dated 28 March 1987 (annexure D) directing the retransfer of the two workman to mion mines of the petitioners with consequential reliefs.
2. The grievance of the employer-petitioners is that the tribunal committeed an error of law apparent on the face of the record in not making an award in terms of the settlement arrived at between the employer petitioners and the Abrakh Mastur Union through its general secretary Haris Chandra Misra, dated 20 February 1968, in respect of the concerned workmen B.D. Bansal and Jagarnath Singh (opposite parties 2 and 8). The petitioners are carrying on the business of extraction of mica from mines and processing is in factories of their sister-concern which are under the same management. A large number of workmen are employed by them in their bunsiness. Jiwat Singh, darwan, was transferred by the management from Domchanon mion mines to Sibsagar factory, B.D. Bansal, checker, frin Bholwaria No. 12 Mica Mines to Sibnagar factory and Jagarnath Singh pump khalasi, from Kukurkolwa mica since to sibnagar workshop on 28 and 27 October and 4 December 1968, respectively. Accordingly to the case of the petitioners, the employers under their service conditions could be transferred form mines be factories and vice versa and an such the tree workmen joined their new assigament without andy pretest. The Abrakh Mazdur Union through its general secretary, Haris Chandra Misra took up the cause of the aforesaid three workmen and raised as industrial dipute by asserting that they could not be transferred from the mines to he factories and demanded their retransfer to their original posts. Thereafter an attempt to settle the matter through consoiliation proceedings failed, and hence the Central Government under Section 10(1)(d) of the Industrial Tribunal Disputes Act (hereinafter referred to as the Act), 1947, made a reference to the Industrial Tribunal (Central), Dhanbad, in respect of the matter specified in the schedule annexed to the order of reference, which read as follws:
Schedule:
I. Whether the action of the management of Eastern Manganese and Minerals, Ltd. (post office Damohanoh,] dustries Hazaribegh). In transferring the workmen mentioned below from the mines specifided against each of them in Col. (4) to the places so specified in Col. (5) with effect from the respective daltes indicated in Col. (6) was an act of viotimisation of the workmen concerced?
Serial Name Designation Name of the mine Name of the place Date From
No. where from where transferred which trans-
ferred
(1) (2) (3) (4) (5) (6)
1. Jiwan Singh.... Darwan.... Demokanch mica Sibnagar factory 29 October
mine. owned by Chrestian 1964
Mica Industries
Ltd. post office
Domehanch.
2. B.B. Bansal.... Checker.... Bholawaria No.12 Do. 27 October
3 Jagarnath Pump Kukurkolwa mica Sibnagar workshop 4 December
Singh Khalasi. mine owned by Cherestian 1964
Industries: Ltd
Post office Dem-
chanch
II If so to what relief are the workmen entitled?
3. The tribunal registered the reference as Reference No. 107 of 1965 and issued notices to the management and the union to file written statement but neither of them filed any written statement. While the matter was ponding before the tribunal, at the intervention of the Assistant Labour Commissioner, Hazaribagh, the management and the union settled the matter and a memorandum(annexure b) of settlement was drawn up on 22 February 1966, and signed by the general manager of the management and Haris Chandra Misra, general secretary of the Akrakh Mazdur Union and the Assistants Labour Commissioner was filed before the tribunal on 26 on February 1966, by Girdhar Gopal with a prayer that the award be made in terms of the settlement between the parties. The following were the terms of settlement:
(1) is agreed by both the parties that B. D. Bengal will be paid Rs.705.54 only in full and final settlement of all his dues on this management, within a week from date of this settlement. After the acceptance of this amount Bansal will have no claim whatever over this management. This payment is over and above his leave-wages and earned wages.
(2) Jagarnath Singh will be given one additional increment with effect from 1 February 1966. He will have no claim for the transfer and the union will also drop this matter before the tribunal.
(3) This union is not processing the case of Jiwat Singh, drawn, as he has already taken his full and final settlement.
(4) The union recognizes the right of the management to transfer the monthly paid employees from one place to another or from one concern to another sister concern and in future they will not raise any demand or dispute in this respect.
(5) The union is agreeable to send one copy of this agreement to the tribunal with the request that an award on the line may please be given.
For Arakh Mazdur Union.
(Sd) H.C. Mishra;
General Secretary, 22 February1966, for Eastern Manaee & Minerals, Ltd.
(Sd) R.C. Agarwala, General Manager (Sd.) K. K Sharma Assistant Labour Commissioner;
Hazaribagh, 22 February 1966
4. Before the filling of the aforesaid settlement workmen B. D. Bansal filed a position before the tribunal on behalf of himself and Jagrnath Singh stating therein that they had to know that the union had compromised with the management but they did not know of it and they did not know on what terms the compromise had been affected and, therefore, they payment that the case be consideration on merits, B. D. Bansal also informed the tribunal that the other workmen Jibat Singh compromised with the management and accepted the claim and as such had nothing to do with the dispute. The tribunal did not make an award in terms of the settlement., but issued notice to the general secretary of the union and representatives of the management and B. D. Bansal and Jagarnath Singh, the two concerned workmen, for showing cause as to why the compromise should not be recorded. Thereafter the labour officer of the management appeared and insisted on making the award in terms of the compromise, whereas the two concerned workmen, B. D. Bansal and Jagarnath Singh did not appear at any stage of the proceedings to contest the compromise and hence the tribunal accepted the compromise so far as Jiwat Singh was concerned, but rejected the compromise with regard to the other two concerned workmen, B. D. Bansal and Jagarnath Singh, who prayed to the tribunal to hear the reference on merits. Hence an award was made in terms of the compromise so far as the concerned workmen. Jiwat Singh, was concerned by the tribunal by its order dated 15 March 1966(annexure C). The management was all along insisting that the workmen be also made in terms of the compromise, but the tribunal did not accede to the request of the management and heard the two individual workmen., B. D. Bansal and Jagarnath, Singh held that the transfer of B.D. Bansal and Jagarnath Singh from mines to Sibnagar factory was unjustified and illegal and it set aside the order of their transfer and directed their retransfer to and reinstatement at their respective mica mines where they were working before. It also directed that the concerned workmen would get full wages and all other reliefs from the date reinstatement in the mines by its award, dated 28 March1967 (annexure D). Hence the employer-petitioners have come up to this Court.
5. Sri Raman Roy, learned Counsel for the petitioner, urged that there was no individual dispute after the matter was settled between the employee-petitioner and the union; opposite party 1, at whose instance the industrial disputes was raised, and reference to the tribunal under Section 10A of the Act was made by the Central Government, An agreement of the management and the secretary of the Abrakh Mazdur Union together with an endorsement by the Assistant Labour Commissioner (Central) Hazaribagh, was filed before the tribunal on 26 February 1966. Sri Ranen Roy submitted that after the a tribunal was apprised of the settlement of the industrial dispute between the employers the Abrakh Mazdur Union, the tribunal was bound to make an award in terms of the settlement. There is a good deal of force in this contention.
6. Section 18(1) of the Act provided that a settlement arrived at by agreement the employer and workmen other wise than in the course of conciliation proceedings shall be binding on the parties, to the agreement; There is no provision in the Industrial Disputes Act like Order 23, Rule 3, Code of Civil Procedure, for recording a lawful compromise arrived at between the parties, but now, i.e. is well-settled that in such a case the tribunal will make an award in terms of the settlement Court in State of Bihar v. D. N. Ganguli 1958-I L.L.J. 634 after reviewing the whole scheme of the act that if an industrial dispute before a tribunal is amicably settled the tribunal would immediately agree to make an award in terms of the settlement between the parties because if it does not do so there is a possibility of a conflict between the award and the provision of Section18(1) of the Act. It is true that if the settlement is arrived at by fraud, misrepresentation or under influence the tribunal will not act on it. Otherwise, in order to secure peace, amity and good relationship between the tribunal will proceed on the basis of the settlement arrived between the parties. In the present case, there is nothing on record to show that the settlement filed before the tribunal is vitiated by any such consideration. The very fact that the tribunal accepted the settlement in respect of the individual workmen Jiwat Singh and made an award accordingly clearly show that it accepted the settlement as genuizely arrived at between the employers and union.
7. The sole basis for refusing to make an award in terms of the settlement in respect of the other two concerned workmen, B.D. Bansal and Jagarnath Singh, was that the two individual workmen appeared before the tribunal and did not accept the compromise arrived at between the employees and the union through its secretary, Haris Chandra Misra. Sri Ranen Roy submitted that the course adopted by the tribunal in the circumstances of the case is erroneous in law. The scheme of the Act shows that the individual workmen has got no iccus standi in the industrial dispute which is raised by the union though the dispute relates to the grievance of the individual workmen. In such a dispute Section 36(1) provides that a workmen who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by an officer of a registered trade union of which he is a member. It is not denied here that the three individual workmen were members of the Abrakh Mazdoor Union. An individual dispute was raised by the union through its secretary before the tribunal. The secretary who was an officer of the union was quite competent to represent the case of the individual workmen before it. After the settlement was arrived at between the employers and the union and was duly signed by the representative of the employers and the secretary of the union the tribunal Should have made an award in terms of the settlement. The individual workmen did not contented before the tribunal that the settlement was vitiated on account of fraud, misrepresentation of undue influence nor was there any proof of the facts which constituted any fraud, misrepresentation or undue influence before it. Hence the only course left for the tribunal was to ignore the objections raised by the individual workmen to making the award in terms of the settlement and hearing the case on merits. Sri Roy drew our attention to a decision of the Supreme Court in Ram Prasad Vishwakarma v. Industrial Tribunal, Patna 1961-I L.L.J. 504 at 507 wherein it was held that the individual workmen is at no stage a party to the individual dispute independently of the union and.,. that the union of a group of workmen who have by their sponsoring turned the individual dispute into an industrial dispute can, therefore, claim to have a say in the conduct of the proceedings before the tribunal. It was also pointed out that the workmen who is a party to a dispute shall be entitled to be represented by an officer of a registered trade union of which he is a member and that such representation by an officer of the trade union should continue throughout the proceedings in the absence of exceptional circumstances which may justify the tribunal to permit other representation of the workmen concerned. In the present case, in my opinion, no such exceptional circumstances existed to justify the tribunal to allow the two workmen, B. D. Bansal and Jagarnath Singh; to be represented through B. D. Bansal.
8. When the workmen, B. D. Bansal, objected to making an award in respect of himself and Jagarnath Singh, the tribunal issued notices to the union through its general secretary, Haris Chandra Misra, Girdhari Gopal, representative of the management, B.D. Bansal and Jagarnath Singh, the two workmen concerned, who did not accept the compromise, to appear and show cause as to why the compromise should not to be recorded. The general secretary, Haris Chandra Misra, did not appear in spite of the registered letter sent to him, nor did Jiwat Singh; another concerned workmen; appear. The labour officer of the management appeared and support the compromise in respect of all the three concerned workmen, whereas B.D. Bansal and Jagarnath Singh appeared and opposed the compromise. The tribunal in its order dared 15 March 1966, stated as follows:
After hearing the representative of the management and the two concerned workmen I decided to accept the compromise in part with regard to Jiwat Singh and to reject the compromise with regard to the other two concerned workmen; namely, B. D. Bansal and Jagarnath Singh, and to hear the reference on the merits at a later stage as against them.
The tribunal made a partial award in terms of the settlement in respect of the concerned workmen Jiwat Singh, but no reason was assigned by it as to why it did not accept the settlement as a whole in respect of all the three concerned workmen and make an award accordingly.
9. From the order of the tribunal dated 15 March1966, itself, it appears that B.D. Bansal, without knowing the terms of settlement, object to making the award in such terms in respect of himself and Jagarnath Singh and, therefore, a prayer was made to hear the reference on merits. In such circumstances, it was not possible for6 the workmen to characterize whether the settlement was fair or unfair. The tribunal also while not accepting the settlement in respect of these two concerned workmen did not assign any reason for not accepting the compromise in respect of them also though it accepted the compromise so far as the other workmen, Jiwat Singh was concerned. No allegation about any fraud, misrepresentation or collusion on the part of the union is alleged in the petition or in the order of the tribunal for not accepting the settlement in respect of these workmen on that ground; but, however, the tribunal, in the award; dated 28 March 1967 (annexure D), has observed that it reject the compromise in respect of the other two workmen, B.D. Bansal and Jagarnath Singh on 15 March 1966, as they the same and challenged the compromise as collusive though no such ground appears to have been taken by the workmen or referred to by the tribunal. At another place the tribunal assumed that the union was in collusion with the management and, therefore, information about the date of the case was not given by the union to take two individual workmen, because the union was in collusion with the management. The written statement filed before the tribunal by these two workmen was placed us and fro a persual of their written statement also no such ground of collusion appears to have been taken by the workmen.
10. No attempt was made by the workmen to show that the terms of the compromise were not fair in the circumstances of the case. According to the settlement quashed, it appears that B.D. Bansal was given Rs705.54 as compensation to be paid by the management besides the leave-wages and earned wages and the other workmen Jagarnath Singh was given one additional increment with effect from 1 February 1966. The union did not press the case of Jiwat Singh as he has taken his claim for final settlement. The union also recognized the right of the management to transfer monthly-paid employees from one place to another or from one concerned to another sister concerned as in future they would not make any attempt or raise dispute in this respect. The two workmen in their written statement raised the point that they would not be getting the factory the allowance to which were entitled the mines and were getting and thus they would be losing about Rs.16 per monthly by their transfer from mines to the factory was mala fide and was an act of victmization. No ground appears to have been taken as to why the management would victimize these three concerned workmen by transferring them form mines to factory where mica was processed after extraction. In such circumstances, it appears that the order of the tribunal was vitiated on account of some extraneous consideration, viz, the tribunal thought that the management was avoiding it (sic) was superanauating on 29 March 1967, and the case would be decided by another tribunal. The tribunal did not reject the compromise in respect of these two workmen after coming to the conclusion that the compromise was collusive, but simply on the ground that the two workmen objected to the compromise being recorded and challenged it as collusive without coming to a finding of collusion between the management and the union.
11. The tribunal lost sight of the facts(as pointed before) that when an industrial dispute is raised by the union or a group of workmen in respect of the grievances of individual workmen and reference is made by the Government, their dispute is between the management and the individual workmen concerned. In the reference it self it is not only the transfer of the three concerned workmen that was in issue but a bigger question was involved as to whether the management had a right to transfer the monthly-paid employees from mines to factories and vice versa. The union recognised the right of the management to make transfer of its employees from one concern to another sister concern for administrative purposes. The tribunal lost sight of the bigger issue and treated it as an individual dispute of the three workmen with the management. It accepted the settlement in respect of one who did not object and rejected it in respect of the other two who objected to the compromise being recorded. When matter was settled between the union and the management and compromise was filed before the tribunal it should not have refused to record to compromise simply because the two concerned workmen objected to its being recorded and proceeds to decide the case on merits. The stand of the management was all along that the individual workmen had no locus standi in the matter. Though notice was issued to the union for showing cause why the compromise should not be recorded, the union did not come forward to object to its being recorded. A similar question came before this Court in Dr. Chandra Kala Jha v. Sone Valley Portland Cement Company, Ltd. Japia and Anr. 1962-II L.L.J. 895, where the union had raised an industrial dispute in regard to the termination of services of one Dr. Chandra Kala Jha and thereafter the union made settlement with the management through the then secretary. The labour court accepted the compromise. Dr. Jha challenged the compromise on the ground that in the compromise she could be only represented through Sarjug Prasad Ambashth, who was the secretary of the union at the time dispute between the petitioner and respondent I arose was not binding on her. This Court observes The legal position is that when an individual workmen is a party when an individual he is a party to an industrial dispute he is a party not independently of the union which has espoused his case, and the main parties to the industrial dispute before the labour court are therefore the employer and the union which has taken up the cause of the individual workman.
The principal laid down is Dr. Chandra Kala jha case 1962-II L.L.J. 395 (vide supra) applies to the facts of the present case. Sri Rasen Roy drew our attention to a recent decision of the Supreme Court in Sirsilh Ltd. V. Government of Andhra Pradesh 1968-II L.L.J.647, where the settlement between the management and the union was arrived at after the tribunal made an award and some to the Government for its publication in the gazette; The Supreme Court held that in such circumstances there was no dispute left to be reseived after the settlement was made though after the making of the award by the tribunal and before its publication by the Government in the gazette, and as such the Government would not publish the award in the gazette. This was an extreme case where the settlement was arrived at after the tribunal made an award, but still the settlement arrived at between the parties provelled over the award. Here bona fide settlement was arrived at between the management and the union which was not visited on the ground of fraud, misrepresentation or under influence. The tribunal was not justified in not making the award in respect of the three workmen in terms of the settlement, and as such the award (annexure D) is erroneous in law and must be set aside.
12. Sri Ranen Roy justified the transfer of these workmen from the mine to the factory on the ground that the transfer was for the administrative purpose and under the terms and conditions of the services under the management an employee could be transferred from one sister concern to another which was under the same management. He relief on a decision of the Supreme Court in Canara Banking Corporation, Ltd v. U. Vittal 1963-II L.L.J. 354. learned Counsel for the petitioners also challenged the finding of the tribunal that the order of the tribunal was mala fide and an act of victimization. No ground for constituting mala fide or victimization was plended by the two workmen. The only ground was that the were getting some extra allowances when they were working mines. The tribunal, however, did not consider whether the compensation allowed to the individual workmen was adequate in proportion to the loss they suffered by the order of transfer and the risk which was involved in the service in mines. On the other hand, Sri Shyama Prasad Mukherji contended that the management had no right to make transfer from mines to factories. He relied on a decision of the Supreme Court in Kundan Sugar Mills v. Ziya Uddin and Ors. 1960-I L.L.J. 266, where the question arose whether the workmen could be transferred from the old concern which was purchased by the management subsequent to his appointment and the transfer workmen was held improper and as such it was set aside. In the present case sufficient materials were not placed before the tribunal as to when the three individual workmen were appointed and when the respective factories to which they were transferred were started. Unless grounds for mala fide were taken and proved, the transfer order must be taken to be for the purpose of administration. It is for the management to decide as to where a particular workmen should be employed. I need not decide the question regarding the validity of the transfer in view of the fact that I have already held that the impugned award (annexure D) is erroneous in law and the tribunal falled in its duty to make an award in terms of the settlement arrived at between the management and the union.
13. For the reasons stated above, the application is allowed and the award of the Industrial Tribunal (Central), Dhanbad, dated 23 March 1967, is quashed and the tribunal is directed to make an award in terms of the settlement, dated 22 February 1966, filed before it on 26 February (annexure B). The petitioner are entitled to costs. Hearing fee: Rs.100.