Andhra HC (Pre-Telangana)
Retired Employees Association vs The Govt. Of A.P. Rep. By The Principle ... on 13 March, 2008
Author: Ramesh Ranganathan
Bench: Ramesh Ranganathan
ORDER Ramesh Ranganathan, J.
1. The dispute which the petitioner Association seeks a reference, to the Industrial Tribunal for its adjudication, is their demand for extension of pensionary benefits to their members, all of whom retired from the services of the third respondent company prior to 24.08.1986. The Government, by its order dated 4.3.1998, declined to make the reference holding that a retired workman was not a "workman" within the meaning of Section 2(s) of the Industrial Disputes Act, that the demand of retired employees did not fall within the definition of 'industrial dispute' and that the dispute raised by the petitioner, an association of retired employees, could not be entertained under the provisions of the Industrial Disputes Act (hereinafter referred to as the "Act"). The Government further informed the petitioner that, as an industrial dispute would arise only in case of a difference between the employer and their workmen and since the Association did not represent any employee in service, it had formed an opinion that there was neither a dispute in existence, nor was a dispute apprehended, and that the matter in dispute did not merit reference. Aggrieved thereby, the present writ petition.
2. Facts, in brief, are that the petitioner, an association of retired employees of the ILTD Division of ITC Limited, has been seeking extension of pensionary benefits under the "Platinum Jubilee Fund Monthly Pension Scheme" announced by the Chairman of ITC Limited on 24.10.1986. The pension scheme was made applicable to all non-seasonal employees on the pay rolls of the company as on 24.8.1986 and not for those who had retired from the service of the company prior thereto. In the charter of demands dated 31.3.1990, as item 9(a) and (b), the Union, representing employees of the ILTD Division, demanded that all clerical/class 'A' workmen be paid 1/3rd of their last drawn wages as pension subject to a minimum of Rs. 375/- per month on their reaching the age of superannuation/retirement/resignation/discharge/death etc., till they were alive and to the widow or children thereafter. The demand raised by the Union of the workmen was not accepted by the third respondent. The retired employees later formed themselves into an association and continued the dispute raised earlier by the Union of workmen. The Deputy Commissioner of Labour, Guntur took up the matter for conciliation and, thereafter, sent his failure report to the Government. The Petitioner-Association filed W.P. No. 4094 of 1994 before this Court seeking reference of the dispute for adjudication by the Industrial Tribunal. While the writ petition was pending before this Court the Government, vide memo dated 24.3.1994, opined that the dispute did not merit reference. The reason for its refusal was that retired employees could not raise any demand with their previous employer as an employer-employee relationship no longer existed. The said order was set aside by this Court and the Government was directed to refer the dispute to the Industrial Tribunal. Aggrieved thereby, the 3rd respondent filed W.A. No. 904 of 1994. The Division Bench, by its order dated 14.12.1995, directed the Government to reconsider the request of the workmen after applying its mind to the material on record and take an appropriate decision whether or not the dispute should be referred for adjudication under Section 10 of the Act uninfluenced by its earlier decision in its memo dated 24.3.1994 or by the observations of this Court in W.P. No. 4094 of 1994 dated 13.4.1994. Thereafter the Government, vide memo dated 04.03.1998, rejected the petitioners' request for reference resulting in their invoking the jurisdiction of this Court under Article 226 of the Constitution of India.
3. Sri M. Panduranga Rao, Learned Counsel for the petitioner, would contend that, since the claim of the workman, who retired prior to 24.08.1986, for being extended the benefits of the pension scheme, formed a part of the charter of demands raised by the Union of workmen of the 3rd respondent company, the said issue constituted an "Industrial Dispute" between the employer and the workmen in relation to the "conditions of labour of any person". Learned Counsel would contend that the expression "person" in Section 2(k) would include a retired workman also and that the petitioner association had merely continued the dispute raised by the Union earlier. According to the Learned Counsel, the Government could not have taken upon itself the task of adjudicating the dispute nor could it have rejected the request for reference on extraneous grounds and, as the Industrial Dispute related to extension of pensionary benefits to employees of the 3rd respondent who retired from service prior to 24.8.1986, the Government ought to have referred the dispute for adjudication to the Industrial Tribunal. Learned Counsel would contend that, since the Government had failed to examine the petitioner's request for reference in the proper perspective, despite specific directions of this Court to do so, a mandamus should now be issued directing them to refer the dispute for adjudication by the Industrial Tribunal and that no useful purpose would be served in now directing them to reconsider this issue all over again. Learned Counsel would place reliance on Mukand Ltd. v. Mukand Staff & Officers Association 2000(1) LLJ 1583 in this regard.
4. Sri K. Kasturi, Learned Senior Counsel appearing on behalf of the 3rd respondent company, would contend that a retired workman was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and that an Association of retired employees was not entitled to raise a dispute which related to the claim of extension of pensionary benefits for its members, that the Government had rejected the request for reference on just and valid grounds and that the order, rejecting the petitioners request for reference, did not necessitate interference in proceedings under Article 226 of the Constitution of India. Learned Senior Counsel would submit that an identical dispute, raised by the Union of workmen belonging to the 3rd respondent company, had been rejected by the Labour Court, Guntur in I.D. No. 3 of 1990 dated 4.8.1997 and that the said Award has attained finality. Learned Senior Counsel would submit that a settlement was entered into between the third respondent company and the Staff Association, under Section 18(3) of the Industrial Disputes Act, on 30.7.1998 whereunder it was agreed that the settlement would not affect or prejudice the terms and conditions and company's requirements confirmed and upheld in the Award in I.D. No. 3 of 1990 dated 4.8.1997. He would further submit that a similar dispute raised before the Patna Industrial Tribunal, for extending the benefits of pension to workmen who had retired from the services of the third respondent company before 24.08.1986, was eventually dismissed by the Supreme Court and the action of the third respondent, in restricting the benefits of the pension scheme only to such of the employees who were on its rolls on 24.8.1986, was upheld. According to the Learned Senior Counsel, since the dispute raised by the petitioner Association has been conclusively decided by the Supreme Court, a direction to the Government to reconsider the matter, or directing them to make a reference to the Industrial Tribunal, would be an exercise in futility. He would place reliance on State of Bombay v. K.P. Krishnan , Prem Kakar v. State of Haryana , Everestee v. District Labour Officer 1999(2) LLJ 851, Standard Chartered Grindlays Bank Retired Employees Association v. Union of India 2007(2) LLJ 887, K. Komaraiah v. Industrial Tribunal-cum-Addl. Labour Court, Hyderabad 2000 LLR 1105, I.L. Naidu v. Union of India 2003(2) ALD 221, ITC Ltd. Workers Welfare Association v. Management of ITC Ltd. 2002(1) LLN 1144, Express Newspapers (P) Ltd. v. Labour Court, Hyderabad 1962(2) LLJ 200 and Lok Nath Attri v. State of H.P. 2001(2) LLJ 1084.
"INDUSTRIAL DISPUTE" UNDER SECTION 2(k): WOULD A DISPUTE, RAISED BY A UNION REPRESENTING WORKMEN IN AN ESTABLISHMENT, RELATING TO THE CONDITIONS OF SERVICE OF RETIRED WORKMEN CEASE TO BE AN "INDUSTRIAL DISPUTE" MERELY BECAUSE THE DISPUTE WAS CONTINUED LATER BY AN ASSOCIATION OF RETIRED WORKMEN?
Section 2(s) of the Industrial Disputes Act defines workman to mean any person, (including an apprentice), employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and, for the purposes of any proceeding under the Act in relation to an industrial dispute, to include any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment has led to that dispute. Certain categories are excluded from the definition of "workman" and, as none of those excluded categories include an employee who has retired from service, it is unnecessary to refer to those excluded categories. Since Sri K. Kasturi, learned Senior Counsel appearing on behalf of the third respondent, contends that a retired employee is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act and any claim by such an employee, or an association of such employees, would not fall within the definition of an "Industrial Dispute" under Section 2(k), it is necessary to refer to the judgments which he relies upon. In Everestee 1999(2) LLJ 851, the question which arose for consideration was whether an employee, who had voluntarily retired from service and had accepted the benefits of voluntary retirement, could be treated as a "workman" under Section 2(s) of the Industrial Disputes Act. The Division Bench of the Kerala High Court held:
...The definition of 'Workman' in Section 2(s), in connection with persons employed in an industry, falls in three parts. The first part of the definition gives the statutory meaning of workman. The second part is designed to include something more in what the term primarily denotes. By this part of the definition, persons who have been dismissed, discharged or retrenched in connection with an industrial dispute; or whose dismissal, discharge or retrenchment has led to an industrial dispute. This part specifically excludes the categories of the persons specified in Clauses (i) to (iv) of Section 2(s). The third part connotes that even if a person satisfied the requirements of any of the first two parts, if he falls in any of the four categories in the third part, he shall be excluded from the definition of 'workman'. In our opinion, the appellant, having voluntarily tendered his resignation pursuant to a scheme for voluntary retirement, the resignation having been accepted by the management and all the benefits arising out of such resignation has been paid by the management and received by the appellant, he cannot be treated as a 'workman' coming under Section 2(s) of the Industrial Disputes Act. As already noticed, the definition only includes persons who are presently employed, or who have been dismissed, discharged or retrenched from the service of the employer. In fact, dismissal, discharge or retrenchment is an act of the employer, whereas terminating the contract of service by way of resignation by the workman is his own act. We are, therefore, of the opinion that the claim of the appellant is misconceived and beyond the scope of Section 2(s) of the Industrial Disputes Act.
In Standard Chartered Grindlays Bank Retired Employees Association5, on the basis of the settlement entered into on 20.11.1997 between the Bank and the Union of Employees, the pension of all retired employees was enhanced on an ad- hoc basis irrespective of their date of retirement. On expiry of this settlement, another settlement was entered into on 10.3.1999 whereby the quantum of monthly pension for various categories of retired employees was raised w.e.f. 1.4.1999 for a period of two years. Certain terms of this settlement was revised by the settlement dated 24.9.2001 and, while enhancing the upper limit from Rs. 6000/- to Rs. 9000/-, the benefit of enhancement was restricted only to those who retired after 1.11.2001 and not prior thereto. The Association of retired employees of the bank raised a dispute before the conciliation officer, who intimated the Bank. The Bank raised an objection to the locus standi of the Association to raise such a dispute and contended that, since the dispute was not an industrial dispute, it was beyond the jurisdiction of the conciliation officer. The Regional Labour Commissioner advised the Association to approach the Labour Court for appropriate relief, if any, under Section 33(c)(2) of the Industrial Disputes Act. Thereafter, the Association invoked the jurisdiction of the Calcutta High Court for a direction to the Regional Labour Commissioner, (Central), Calcutta to submit his failure report on the conciliation of the Industrial dispute regarding denial of higher pensionary benefits to employees of the respondent bank who retired before November, 1st 2001 and for other consequential benefits. The Calcutta High Court, after referring to the definition of "Industrial dispute" under Section 2(k), and "workman" under Section 2(s), observed:
...It appears from the above provision that a retired employee cannot be included in the definition of workman for the purpose of Industrial Disputes Act, 1947. Further, coming back to the provisions of Sub-section (k) of Section 2 of the Industrial Disputes Act, 1947, in my opinion, the industrial dispute means and includes any dispute or difference between the employers and workmen. As such the workmen are entitled to be the parties to a bipartite settlement in between the employers and the workmen under the Industrial Disputes Act, 1947 and it is also open for them to take up an issue of any person including the retired workmen. Because the payment of pension has a direct bearing on substantial interest of the workmen who will enjoy such pension after retirement. But no retired workman can be a party to any dispute or difference with their erstwhile employers....
In Lok Nath Attri 2001(2) LLJ 1084, the order of the appropriate Government in rejecting the petitioner's request for a reference to be made to the Industrial Tribunal was the subject matter of challenge before the Division Bench of the Himachal Pradesh High Court which held that, from the date of resignation of an employee, there was no employer-employee relationship and hence it could not be said that an "industrial dispute exists or is apprehended" or that the appropriate Government had exceeded its jurisdiction in refusing the reference. In I.L. Naidu 2003(2) ALD 221, this Court observed that all employees, who had exercised their option for the benefits of voluntary retirement, had on such acceptation severed the employer - employee relationship and had also received and encashed the cheques representing the VRS payments as well as other terminal benefits and, therefore, could not be considered to be the workmen of the company. It is necessary to note that in I.L. Naidu7, the question which fell for consideration before this Court related to the validity of the order of closure of the Lead Smelter Plant of Hindustan Zinc Limited and the observations, referred to hereinabove, made while examining the question whether or not the order of closure was valid, cannot be read out of context as laying down a general principle that in no case can a dispute, relating to payment of the terminal benefits of a retired workman, fall within the definition of an "Industrial dispute" under Section 2(k) of the Act.
Similarly, in K. Komaraiah 2000 LLR 1105, a petition was filed by certain workmen aggrieved by the award of the Additional Industrial Tribunal, Hyderabad rejecting their claim for reinstatement into the services of the second respondent company consequent on the revival of the manufacturing activity in their establishment. It is in this context that this Court observed:
...A person who is a workman for the purpose of the definition under Section 2(s), and for the purpose of industrial dispute under Section 2(k), ceases to be a workman if he is not dismissed, discharged or retrenched employee. If a workman is dismissed, discharged or retrenched he can still be a workman for the purpose of the Act and for the purpose of claiming the benefits under the Act. In the event of closure of an industry, a workman may suffer retrenchment. Though this legal position is disputed by the learned Counsel for the petitioner, the decided cases support the view that in the vent of closure of the unit in accordance with the provision of the Act, the workers are deemed to be retrenched.
In view of my holding that though closure of the unit under Section 25-O results in retrenchment of the employee, a employee/workman who has taken voluntary retirement after closure of the unit cannot be said to be retrenched, the point that needs to be considered is what is the reasonable interpretation of the scope of Sub-section (2) of Section 25-H. Sub-section (2) of Section 25-H, as amended by the A.P. State legislature, cannot be interpreted in vacuum. It has to be interpreted giving full scope to the words used in the Sub-section as well as well as the words as defined in the Act. As already observed by me, a dismissed or discharged or retrenched workman is also a workman but a person who voluntarily retired cannot be a workmen for the same is neither dismissal, removal, discharge nor retrenchment.
Section 2(k) of the Act defines "Industrial dispute" to mean any dispute or difference between employers and workmen which is connected with the employment or with the conditions of labour of any person. The question whether the words "any person" in Section 2(k) would bring within its fold an employee who has retired from service and whether a dispute, relating to the pensionary benefits payable to such workmen, raised by the Union representing the workmen of the third respondent company, and continued thereafter by an association of retired employees, would fall within the definition of "industrial dispute" under Section 2(k) necessitating such dispute being referred to the Industrial Tribunal under Section 10 of the I.D. Act did not arise for consideration in any of the judgments referred to hereinabove.
5. In Mukand Ltd. 2000(1) LLJ 1583 the Bombay High Court, after referring to several earlier judgments of the Supreme Court in "Workmen v. Management of Dimakuchi Tea Estate Ltd. 1958(1) LLJ 500, Standard Vacuum Refining Co. of India Ltd. v. Its Workmen 1958(1) LLJ 500, All India Reserve Bank Employees Association v. Reserve Bank of India 1965 (2) LLJ 175, Workmen v. Greaves Cotton Co. Ltd. 1971(2) LLJ 479 and Gujarat Electricity Board Thermal Power Station Ukai v. Hind Mazdoor Sabha 1995(2) LLJ 790, held that the consistent view of the Supreme Court was that a non-workmen could also raise a dispute in respect of a matter affecting their employment, their service conditions etc., where they have a community interest, provided they are direct and are not remote. The conditions of labour of "any person" would bring within its ambit extension of pension to a retired workman. Such a dispute raised by the Union, representing the workmen in an establishment, would be an "Industrial Dispute" under Section 2(k) of the Act. Once a valid "Industrial Dispute" has been raised by the Union, would the mere fact that the dispute was continued later by an Association of retired employees, take it out of the purview of an "industrial dispute" under Section 2(k) of the Industrial Disputes Act? It may not be necessary for this Court to examine this question in a writ petition challenging the action of the Government in refusing to make a reference, as the question whether or not such a dispute is an "industrial dispute" can as well be adjudicated, on a valid reference being made to it, by the Industrial Tribunal. When examined from this angle, there is considerable force in the submission of Sri M. Pandurangarao, learned Counsel for the respondent Union, that the Government had exceeded its jurisdiction in adjudicating this question on merits.
FACTORS TO BE BORNE IN MIND BY THE APPROPRIATE GOVERNMENT, IN CONSIDERING WHETHER OR NOT A REFERENCE SHOULD BE MADE, TO THE INDUSTRIAL TRIBUNAL, UNDER SECTION 10(1) OF THE I.D.ACT:
In considering the question of making a reference, under Section 10(1) of the Act, the Government is entitled to form an opinion whether an industrial dispute "exists or is apprehended". Formation of the opinion whether an industrial dispute "exists or is apprehended" is not the same as to adjudicate the dispute itself on its merits. While exercising the power to make the reference the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis. (Ram Avtar Sharma v. State of Haryana ; M.P. Irrigation Karamchari Sangh v. State of M.P. ; Shambu Nath Goyal v. Bank of Baroda, Jullundur ; and Telco Convoy Drivers Mazdoor Sangh v. State of Bihar 1989(2) LLJ 558).
6. When the appropriate Government considers the question whether any industrial dispute should be referred for adjudication or not it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. If the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision thereon as that would, normally, lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be in the province of the Industrial Tribunal. But the appropriate Government is not precluded from considering, prima facie, the merits of the dispute when it decides the question whether its power to make a reference should be exercised or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. Prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under Section 10(1) of the Act. (K.P. Krishnan ; Bombay Union of Journalists v. State of Bombay ).
The appropriate Government may determine, prima facie, whether an industrial dispute exists or the claim is bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. (Ram Avatar Sharma ). The function of the appropriate Government is, however, not to go into the merits of the dispute, but to refer such a dispute for adjudication so that industrial relations, between the employer and his employees, may not continue to remain disturbed and the dispute may be resolved through a judicial process as speedily as possible. (State of Madras v. C.P. Sarathy ; Western India Watch Co v. Its Workmen ).
In Telco Drivers Mazdoor Sangh v. State of Bihar 1989(2) LLJ 558 the Supreme Court observed:
...Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in, the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. As has been held in M.P. Irrigation Karamchari Sangh's case (supra), there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of the valid disputes, and that to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory....
As held in Telco Drivers Mazdoor Sangh 1989(2) LLJ 558 the dispute, whether the persons raising the dispute are workmen or not, cannot be decided by the Government in exercise of its functions under Section 10(1) of the Act and is better left for adjudication by the Industrial Tribunal.
SCOPE OF ENQUIRY IN WRIT PROCEEDINGS INSTITUTED AGAINST AN ORDER MADE BY THE APPROPRIATE GOVERNMENT UNDER SECTION 10(1) OF THE INDUSTRIAL DISPUTES ACT:
In entertaining an application for a writ of mandamus, against an order made by the appropriate Government under Section 10(1), the Court is not sitting in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the said Government. If it appears that the reasons show that the appropriate Government took into account a consideration which was irrelevant or foreign, that may justify the claim for a writ of mandamus. If the determination is based on the irrelevant, extraneous or grounds not germane to the exercise of power it is liable to be questioned in exercise of the power of judicial review. In such a situation the Court would be justified in issuing a writ of mandamus. (Ram Avatar Sharma AIR 1985 SC 915).
A writ of mandamus would lie against the Government if the order passed by it under Section 10(1) is, for instance, contrary to the provisions of Section 10(1)(a) to (d) in the matter of selecting the appropriate authority. Similarly, if a party can show that the refusal to refer a dispute is not bonafide or is based on a consideration of wholly irrelevant facts and circumstances a writ of mandamus would lie. If the court is satisfied that the reasons given by the Government for refusing to make a reference are extraneous and not germane then the court can issue, and would be justified in issuing, a writ of mandamus. (K.P. Krishnan AIR 1960 SC 1223). Maybe, the Court may not issue a writ of mandamus, directing the Government to make a reference but the Court can, after examining the reasons given by the appropriate Government for refusing to make a reference, come to a conclusion that they are irrelevant, extraneous or not germane to the determination and then can direct the Government to reconsider the matter. (Ram Avtar Sharma AIR 1985 SC 915).
In the present case the Government has in fact adjudicated the dispute, which the petitioner association had sought to be referred for adjudication by the Industrial Tribunal, on merits and has, thereby, exceeded its jurisdiction under Section 10(1) of the Act. While this may have necessitated the impugned order being set aside, and the matter remanded back to the Government for its reconsideration afresh, it cannot be lost sight of that the very same issue has already been decided in favour of the third respondent by the Labour Court, Guntur, in its Award in I.D. No. 3 of 1990 dated 4.8.1997 and a similar question, adjudicated by the Patna Industrial Tribunal, has been conclusively decided in favour of the third respondent company by the Supreme Court in ITC Ltd. Workers Welfare Association 2002(1) LLN 1144.
A perusal of the affidavit, filed in support of the writ petition, would reveal that the dispute, which the petitioner associations seeks a reference to be made to the Industrial Tribunal for its adjudication, is whether or not the third respondent company was justified in restricting the benefits of the Platinum Jubilee fund monthly Pension Scheme, announced by it on 24.10.1986, only to non- seasonal employees of the company as on 24.08.1986, and not to employees who retired prior thereto. An identical question fell for consideration before the Labour Court Guntur in ITLD 3 of 1990 and the Labour Court, Guntur, in its award dated 04.08.1997, held as under:
...Even under the latest employees P.F. introduced by the Government of India in 1995, it contemplates extending pension benefits to employees retiring after 16.11.1996. Hence I do not agree with the contention of the petitioner that there is any arbitrairiness in the cut-off date and consequently, item No. 9(b) of the order of reference has to fail.
7. As to the question whether the retired employees are not workmen, there are three judgments of Madras and Kerala High Courts holding that they are not workmen. They are reported in 1961 (I) LLJ 592, 1981(42) FLR 182 and 1977 (39) FLR 66. Even the definition of the term "workman" Under Section 2(s) of I.D. Act, does not, in my opinion, take any retired employees. It specifically provides for such categories of Ex.workmen/employees, viz., those who have been retrenched/dismissed/terminated or otherwise discharged and nothing prevented the parliament to include the category of retired personnel also in the definition. So I agree with the judgments of the Madras and Kerala High Courts in this respect and disagree to be persuaded by the Bombay High Court's view. So relying on the judgment of the Supreme Court reported in 1950(1) LLJ 500 (Dimakuchi Tea Estates Ltd., case) I have to hold that there can be no valid industrial dispute in respect of such non-workmen and consequently the order of reference to that extent has to be held bad in law. Since I find that when for the whole company pension scheme is being uniformly applied, item No. 9(a) cannot be considered in isolation for enhancement in favour of the petitioner association members, who admittedly and undisputedly account for an infinitesimal number. It is rightly contended by the management that such a relief would have a cascading effect and consequently would not be conducive to industrial peace and harmony by upsetting the scheme, which is otherwise working smoothly in all the establishments of the company throughout the country. There are also no justifiable grounds shown except stating that the company can afford, being a profit making company. That cannot be a ground for granting the relief. Therefore, this demand No. 9 of the petitioner association is to be rejected....
In ITC Ltd., Workers Welfare Association8, an Association of retired workmen, of the Munger Branch of ITC Limited, questioned the order of the Patna High Court, confirming the award passed by the Industrial Tribunal, Patna in reference No. 3 of 1992, before the Supreme Court. The reference, made to the Industrial Tribunal, Patna in the said case, read as under:
Whether to enforce Platinum Jubilee Scheme Pension Plan for the workers who retired from service on or after 24 August 1986 and to enforce other pension scheme for the workers retired before the 24 August 1986 and to give two types of benefits to both types of workers by the Management of I.T.C. Ltd., Basudeopur Munger is legal and justified? If not, whether the workers who retired before 24 August 1986 from I.T.C. Ltd., Basudevpur Munger are also entitled for the benefits under Platinum Jubilee pension Plan?
The dispute, which was referred to the Patna Industrial Tribunal, is identical to the dispute in the present case for which the petitioner association seeks a direction to the Government to make a reference for adjudication by the Industrial Tribunal. On an award being passed by the Industrial Tribunal, Patna answering the reference against the Union of workmen, and the award being confirmed by the Patna High Court, the matter was carried in appeal by the Union and the Supreme Court observed:
...Viewed in the light of these principles. it cannot be said that the settlement in the present case, which is otherwise valid and just suffers from any legal infirmity merely for the reason that one of the clauses in the settlement extends the benefits of life pension scheme only to the employees retiring after a particular date, i.e., 24 August 1986. Exclusion of workmen retiring before that date is no ground to characterize the settlement as unjust or unfair. Of course, the allegations of mala fides such as corrupt motives have not been leveled against anyone and that aspect becomes irrelevant here. The High Court proceeded to consider whether even that particular clause in the settlement dealing with the pension is per se arbitrary or discriminatory and reached a conclusion that it is not so for the reason that a new scheme for pension has been introduced by the impugned settlement and that the question of arbitrariness in fixing the cut-off date does not therefore arise. The High Court further held that the fixation of cut-off date for purpose of entitlement of life pension cannot be said to be arbitrary or irrational as such fixation became imperative from the financial point of view and moreover the date coincided with the Platinum Jubilee Celebrations of the Company. The date was not picked up from the hat, the High Court observed. The High Court approached the issue more from the angle of Article 14 and referred to the decisions in which the State's action in making the classification for the purpose of extending the pensionary benefits or additional benefits fell for consideration of this Court. Strictly speaking, such approach is not appropriate. The present case is one where Article 14 cannot be applied as the respondent is not "State" or "other authority". On this, there is practically no dispute. If so, the approach should be as we indicated earlier, that is to say, whether the settlement can be said to be unjust, unfair or vitiated by mala fides. No mala fides is imputed to anyone. What remains to be considered is whether it is fair and just, viewed from a broader angle and taking a holistic view of the matter. It is true that certain considerations germane to Article 14 may also be germane while deciding the issue whether the settlement is just and fair. Put, it does not follow that the doctrine of classification and the principles associated with it should be projected wholesale into the process of consideration of justness and fairness of the settlement. There may be some overlapping and there may be some facets which apply in common to determine the crucial issue whether the settlement on the whole is just and fair, but that is not to say that the settlement is liable to be tested on the touchstone of Article 14, more so when it has no application in the instant case. Keeping this distinction in mind and considering the grounds of attack on the particular clause of settlement, we are unable to hold that it is vulnerable to challenge on any well-recognised grounds. The facts on record do not establish that the settlement which was reached was palpably unjust or unfair from the point of view of the entire body of workmen. The preponderance of circumstances and the material on record do not, in our view, displace the presumption attached to the settlement arrived at in the course of conciliation.
Firstly, it is to be borne in mind that there was no challenge at any time to any of the terms of the settlement other than the clause relating to pension in so far as it confines the benefit of life-long pension only to those who retire on or after 24 August 1986. Secondly, we must give due weight to the fact that the settlement was reached as a result of collective bargaining and with the assistance of Conciliation Officer. Invariably, there would be an element of give and take in the deal leading to the settlement. Granting the benefit of life-long pension prospectively or with limited retroactive effect does not make the settlement unjust or unfair. It is certainly beneficial to the workmen in service and those who retired few months earlier. The mere fact that the management did not go the whole hog to extend the benefit to all the retired employees does not impart an element of unjustness or unreasonableness to the settlement. Financial implications apart, the benefits granted to workmen under various other clauses of settlement have to be kept in view. This particular clause relating to pension cannot be considered in isolation. The learned senior counsel for the petitioners argued that there was no justification in making a sub-classification amongst the retired employees by giving the benefit to those who retired only between 24 August 1986 and the date of settlement. In our view, conferment of such additional benefit to workmen who retired after the date of platinum jubilee celebration and before the date of culmination of settlement, far from making it unjust or irrational, tantamounts to extending benefit to some more workmen who would not have got it otherwise, if the decision was implemented prospectively. Apparently, such decision was taken to arrive at an amicable settlement and to comply with the demands of the workmen to the extent feasible and practicable. The argument that either all the retired employees should be given the benefit or none at all cannot cut ice if the principles of collective bargaining and justness of the settlement viewed as a whole is kept in view. There is nothing which is palpably unjust or irrational in giving the benefit only to those who retired during and after the platinum jubilee year. Though there was some dispute as to the correctness of the date on which the platinum jubilee falls, no material has been placed before us excepting the date of incorporation of the company to establish the version of the appellants in this regard. Picking up that date by going a little backwards from the date of settlement cannot be regarded as a whimsical or arbitrary step, more so when it was done with the consent of a large majority of workmen. The Tribunal while adjudicating the dispute and the High Court while exercising its jurisdiction under Articles 226/227 should be circumspect and cautious in disturbing the term of settlement founded on collective bargaining and conciliation. The adjudicator of industrial dispute could not have directed the benefit to be extended to all the retired employees by substituting its own views to those reflected in the settlement, on an application of the usual principles governing industrial adjudication. Another factor to be taken into account is that the recognized union of workmen which espoused the cause of the retired employees and contested the issue before the Industrial Tribunal did not pursue the matter further obviously because they felt that in the larger interests of maintaining industrial harmony and peace, the matter should be left off at that stage. A member of that recognized union had taken up the issue before the High Court. Considering all these factors, we find no legal infirmity in the award of the Tribunal which has been affirmed by the High Court and we say so without going into the subtle question whether the scheme is a new one for all practical purposes or only a revision or liberalization of the pre-existing pensionary benefits....
In this context it is also necessary to note that a memorandum of settlement was entered into between the third respondent company and the ILTD Companies Staff Association on 30.07.1998 under Section 12(3) read with Section 18(3) of the I.D. Act and that Clause (XLI)(3) thereof reads as under:
The Settlement shall not affect or prejudice the terms and conditions as agreed between the Company and the Union in the previous Settlements/Minutes of Understanding. Standing Orders or practices and also the terms & conditions and Company's requirements confirmed and upheld in the Award dated 04.08.1997 in I.D. 3/90, unless and otherwise specifically agreed for any changes in this Settlement....
It is well settled that a settlement arrived at during conciliation proceedings has an extended application and is binding on all parties to the industrial dispute, to all others who were summoned to appear in the conciliation proceedings, to all persons employed in the establishment to which the dispute relates on the date of the dispute and to those who joined the establishment thereafter. Such a settlement would bind all existing workmen who are all parties to the Industrial Dispute and may not be members of the Unions that are signatories to such a settlement made under Section 12(3) of the Act. The Industrial Disputes Act is based on the principles of collective bargaining for resolving industrial disputes and for maintaining industrial peace. (National Engineering Industries Ltd. v. State of Rajastan ).
In the light of the judgment of the Supreme Court in ITC Ltd. Workers Welfare Association 2002(1) LLN 1144 which, under Article 141 of the Constitution of India, is binding on all Courts and Tribunals in the country, and the Award of the Labour Court, Guntur in I.D. No. 3 of 1990 dated 4.8.1997 which has attained finality, it is evident that, even if a reference were to be made by the Government, the Industrial Tribunal, cannot take a view different therefrom. In such circumstances, no useful purpose would be served in now directing the Government to re-examine the matter.
Writ of Mandamus or Certiorari Will Not Be Issued Where Grant of Such A Writ Would Be An Exercise In Futility Courts regard their primary role as resolving existing disputes between parties and naturally take exception to having to decide theoretical or hypothetical issues. A dispute will be theoretical in the presence of certain elements, including where it has ceased to be of practical significance. It is of the greatest importance, in deciding whether or not discretion should be exercised in favour of granting the relief, that the relief should serve some useful purpose. If it does not, it is difficult to see what reason there can be for granting the relief. (de smith, woolf & jowell: Judicial Review of Administrative Action: Fifth Edition; Administrative Law: Fifth Edition: P.P. CRAIG).
A petition under Article 226 of the Constitution may be dismissed on the ground that issuance of a writ will be ineffective, infructuous, unnecessary or futile. If the Court is satisfied that no useful purpose would be served by issuing a writ, it can dismiss the application on that ground alone. As it is not the practice of Courts to issue meaningless writs the High Court while granting relief, on being satisfied that issuance of a writ would be ineffective, should consider whether grant of a writ would not be an exercise in futility. (Suresh v. Vasant , Balmadies Plantations Ltd. v. The State of Tamil Nadu . A writ of certiorari or mandamus would not, ordinarily, be issued when they would be useless, (Debendra Bandhy Lahiri v. The State of West Bengal ), or meaningless (K.N. Guruswamy v. State of Mysore , Nand Kishore Sarat v. State of Rajastan ) or ineffective, (Mrs. Lilawati Mutatkar v. State of Madhya Bharat AIR 1952 Madhya Bharat 105 (Indore Bench)), or unavailing or if granted fruitless. (Bal Krishan Aggarwal v. The Punjab State ; Ajit Kumar Addy v. S.M. Maitra ).
In Munindra Kumar v. Rajiv Govil , the selection process adopted by the State Electricity Board was held to be arbitrary and ultra vires the Rules. Since, however, creation of three more posts, (for the three petitioners), would have required candidates, similarly situated, also to be considered, and as there was only a remote chance of the petitioners being selected, the Supreme Court declined to issue a writ holding that it would be an exercise in futility and that these were all matters of discretion and not of jurisdiction of the Court. As an identical dispute has been held against the workmen, by the Labour Court, Guntur, in I.D. No. 3 of 1990 dated 4.8.1997 which Award has attained finality, and a similar dispute raised before the Patna Industrial Tribunal has been conclusively decided by the Supreme Court in ITC Ltd. Workers Welfare Association8, in favour of the third respondent company, I see no reason to exercise discretion, in favour of the petitioner-association, to direct the Government to reconsider the matter, as issuance of any such writ would be an exercise in futility. The writ petition fails and is, accordingly, dismissed. However, in the circumstances, without costs.