Madhya Pradesh High Court
General Secretary, M.P. Bijli ... vs Secretary, M.P. Electricity Board And ... on 6 May, 2004
Equivalent citations: 2005(2)MPHT81
Author: S.K. Seth
Bench: S.K. Seth
ORDER S.K. Seth, J.
1. This writ petitioner is directed against Settlement dated 24-8-1996 (Annexure P-2) and consequent orders dated 26-8-1996 and 31-8-1996 (both cumulatively marked as Annexure P-1) to the writ petition. Annexures P-1 and P-2, brought about certain changes in the service conditions of employees of the respondent No. 1. Question is whether changes introduced are illegal ?
2. Admittedly respondent No. 1 M.P. Electricity Board (hereinafter referred to as 'Board') is an 'employer' running an 'undertaking' which is governed by the provisions of M.P. Industrial Relations Act, 1960 (hereinafter referred to as "the Act" for short). Both petitioner as well as respondent No 2 is registered trade unions, which represent interests of the employees of the Board. Respondent No. 2, M.P. Vidyut Karmchari Sangh (Federation) is the 'Representative Union' as provided under Section 2(28) of the Act. It gave a notice of change on 27-7-1994 under Section 31 (2) of the Act, seeking changes in pay scales, allowances, and other fringe benefits in respect of Class III and IV employees. After discussions, Board and respondent No. 2 arrived at the impugned settlement on 24-8-1996 and as a part of package deal, agreed for change in working hours and public holiday. The settlement was duly registered under Section 33 of the Act. Based upon the aforesaid settlement impugned orders 26-8-1996 and 31-8-1996 were issued by the Board. These facts are not in dispute.
3. According to Shri Sudhir Verma, learned Counsel for the petitioner changes introduced are covered by Item Nos. 10 and 11 of Schedule I of the Act. Changes in working hours and reduction of public holiday can be effected only after notice under Section 31 of the Act. Since no prior notice was given either by the Board or respondent No. 2, therefore, impugned settlement is void ab initio and could not have been registered by the respondent No. 4 under Section 33 of the Act. It is further alleged that changes affected by the settlement is illegal and hit by provisions of Section 34 (b) (i) of the Act. According to petitioner, respondent No. 4 without following the procedure prescribed, in post haste manner registered the impugned settlement under Section 33 of the Act resulting into illegal changes that are not binding on the members of the petitioner union. It is also alleged that on 26-8-1996 itself, petitioner vide Phonogram raised objections and demanded opportunity of personal hearing from respondent No. 4 who, without making any enquiry/investigation and affording opportunity of hearing registered the settlement on the basis thereof orders dated 26-8-1996 and 31-8-1996 were issued, which too are illegal. Placing reliance on Metal & Engineering Workers Union v. Himmat Steel Foundry Ltd., 1984 MPLJ 134, H.L. Trehan v. Hindustan Petroleum Corporation Ltd., AIR 1989 SC 568 and Dinesh Kumar Sharma v. M.P. Dugdha Maha Sangh, 1994 MPLJ 692, learned Counsel for the petitioner is seeking a writ in the nature of certiorari to quash impugned settlement (Annexure P-2) and orders dated 26-8-1996 and 31-8-1996 (Annexure P-1).
4. After Notice, respondent No. 1 Board has filed reply to the writ petition. Respondent No. 2 while adopting the reply of the Board has raised preliminary objection that present writ petition is not maintainable in view of efficacious alternative remedy of raising a dispute before the Labour Court which is appropriate forum to look into the disputed questions of fact and to determine whether changes are legal or illegal. During the course of arguments on the basis of pleadings it was also contended for these respondents that writ petition to assail the validity of settlement worked out by the respondent No. 2, a Representative Trade Union, is also not maintainable at the instance of petitioner, which is not the Representative Trade Union. According to learned Counsel for the Board, vide Order dated 18-4-1994 (Annexure R-1) one man Wage Advisory Committee headed by Justice G.S. Sohani, Retired Chief Justice was constituted by the Board. Terms of reference included working hours and public holiday. On 26-4-1994 Board gave a general notice listing terms of reference so as to invite suggestions from all individuals as well as from the trade unions. Respondent No. 2 in connection with the terms of reference of the Wage Advisory Committee gave the notice of change under Section 31 on 27-7-1994 in the prescribed form. After due discussions on various demands, Board and respondent No. 2 arrived at an agreement on 10-6-1996 with regards to major fringe benefits to be regulated as per 5th Pay Commission appointed by the Government of India and as part of package deal, it was agreed between the parties for change in the working hours and public holiday would be regulated by a separate agreement. Pursuant to agreement dated 10-6-1996, separate but supplementary agreement was drawn up on 24-8-1996 with regard to working hours and public holiday. Since notice was already given, therefore, no separate notice was required for effecting change in working hours and public holidays. It was submitted to the respondent No. 4, Registrar of Trade Unions who after enquiry being satisfied registered the agreement on 26-8-1996. As such no infirmity or illegality can be attributed to the agreement, especially when the earlier main agreement dated 10-6-1996 was not challenged at any point of time. Shri G.S. Patwardhan, learned Counsel appearing for respondent No. 1 further contended that under various Industrial Laws, minimum working hours prescribed is 8 hours but as per agreement employees are asked to work only for 7 hours on a working day. Learned Counsel placing reliance on the decision of the Supreme Court in Oil & Natural Gas Commission v. Workmen, AIR 1973 SC 968, submitted that the writ petition being devoid of substance merits dismissal with costs.
5. While supporting contentions of respondent No. 1, Shri S.H. Moyal, learned Counsel for respondent No. 2 submitted that the representative union of the employees for their benefits after due notice validly agreed for the changes. Petitioner being rival trade union is trying to settle political scores through this writ petition before this Court, which is not the proper forum. It was further contended that changes would not fall under Items 10 and 11 of Schedule I but fall under Item No. 6 or at any rate under Item 5 of Schedule II which gives a right to individual employee to challenge it before the Labour Court spread out in the territory of the erstwhile State of Madhya Pradesh before its bifurcation into two States under M.P. Reorganisation Act, 2000 but not a single employee challenged the changes after the implementation. It was further contended that change in working hours and curtailment of public holiday are part of package deal negotiated by the respondent No. 2 as representative Union of the employees and it is binding on all employees whether member or not in terms of Section 97 (1) (b) of the Act and it is not open to challenge at the instance of petitioner. It is further submitted that agreement was arrived at as a result of negotiations wherein respondent No. 2 representing the collective bargaining force of employees in the spirit mutual give and take accepted changes in working hours while obtaining higher wage structures for the employees and this was done after due notice under Section 31. Placing reliance on following decisions of the Supreme Court in Herbertsons Ltd. v. Their Workmen, AIR 1977 SC 322; Balmer Lawrie Workers' Union v. Balmer Lawrie & Co. Ltd., AIR 1985 SC 311; Barauni Refinery Pragatisheel Shramik Parishad v. Indian Oil Corporation Ltd., AIR 1990 SC 1801; P. Virudhachalam and Ors. v. The Management of Lotus Mills and Ors., AIR 1998 SC 554, learned Counsel for respondent No. 2 submitted that mutual settlement arrived at with the representative union in the course of collective bargaining has to be placed on higher pedestal and unacceptability by a minor rival union pales into insignificance, as such the writ petition is liable to be dismissed with heavy compensatory costs.
6. After having heard learned Counsel for respective parties at length, and after carefully considering the material available on record, I am of the view that there is no merit and substance in the writ petition.
7. Undisputedly at the relevant point of time respondent No. 2 was the representative union of the employees qua the Board. It definitely had precedence over any other trade union even if registered in view of the provisions contained in Section 27 of the Act. Pursuant to the Notice dated 26-4-1994 issued by the Board, respondent No. 2 gave a notice of change on 27-7-1994 and after deliberations Board and respondent No. 2 arrived at an agreement dated 10-6-1996 with regard to major benefits to be regulated as per 5th Pay Commission appointed by the Government of India for its employees. It was also agreed between the Board and respondent No. 2 that change in working hours and public holiday would be regulated by separate agreement. Separate agreement with regard to working hours and public holiday was drawn up between the parties on 24-8-1996. In the considered opinion of this Court, once after a notice it was agreed that change in working hours and public holiday would be determined by supplementary agreement, then no further notice was required for making changes in working hours and public holiday. Respondent No. 2 being the Representative Union, reflected the Will of the employees working with the Board. The underlying principle of the Act is to promote collective bargaining through organised labour force, i.e., union. Under Section 27 the representative union has the preferential right to act and appear on behalf of employees. Once it accepted/agreed to changes in working hours and public holiday, then in the considered opinion of this Court it can not be challenged by other union. The binding effect of the settlement brought about by the agreement dated 24-8-1996 which covers the entire body of workmen can not be whittle down by the petitioner. It binds all whether signatory to agreement or not. Learned Counsel for respondents are right in contending that if agreement brought about illegal changes then certainly it was open to challenge by individual workman under Section 34 read with Section 61 to expose the illegality of agreement in any of the Labour Court scattered through out in the area of entire erstwhile State of M.P. before its bifurcation into two States viz., present State of Madhya Pradesh and State of Chhattisgarh. Fact that none of the workmen instituted proceedings under the Act shows that impugned agreement and subsequent changes brought about were acceptable to workmen employed with the Board. In the considered opinion of this Court law laid down by the Supreme Court in Oil & Natural Gas Commission (supra) and Herbetsons Ltd. (supra), which was subsequently followed in P. Virudhachalam (supra) is squarely applicable to the facts of the present case. Reliance placed on the Division Bench decision of this Court in Metal Steel Foundry Ltd. (supra) is clearly distinguishable. In Metal Steel Foundry case, Division Bench found that the agreement provided for wages that were less than the prescribed minimum wages under the law, thus agreement being violative of fundamental right enshrined under Article 23 of Constitution of India, was struck down and it was observed that while holding enquiry this aspect of agreement was completely overlooked by the Registrar while exercising the jurisdiction under Section 33 of the Act. No such circumstances exist in the facts of the present case. The right to control working hours or public holiday does not in any manner what so ever infringe any of fundamental right much less any statutory right. Similarly, reliance placed on H.L. Trehan (supra) is also of no avail to the petitioner in as much as in that case the Supreme Court was dealing with the change in service conditions made in exercise of power conferred under the provisions of Section 11 of the Caltex (Acquisition of Shares of Caltex Oil Refining (India) and of the Undertakings in India of Caltex (India) Limited Act of 1977 (Act No. 17 of 1977) and it was held that use of expression 'duly' exclude arbitrary exercise of power by Government of India. This case is of no help to the petitioner as it is clear that after due notice setllement was arrived at between the Board and the respondent No. 2 which is binding on all workmen whether member of respondent No. 2 or not. Since the settlement was arrived at after mutual negotiations, there was no need to afford personal hearing to workman or the petitioner Union. If this argument is accepted then in the considered opinion of this Court it would only undermine the strength of collective bargaining which is not the intendment of the Legislature as reflected through the various provisions of the Act. Principles of natural justice are not unruly horse or bull let lose in a China shop so as to wreck down well recognised power of collective bargaining. It is now well settled that principles of natural justice can not be fitted in a rigid mould. The requirement of natural justice varies and its applicability will depend upon each particular case. As pointed out here in above notice of change was duly served by the respondent No. 2 and the agreement dated 24-8-1996 was arrived at after mutual negotiations between the Board and respondent No. 2. The agreement was duly registered by the Registrar of Trade Union, i.e., respondent No. 4.
8. The upshot of the whole discussions is that impugned agreement dated 24-8-1996 is perfectly valid and was rightly registered under Section 33. Consequently orders dated 26-8-1996 and 31-8-1996 also do not call for interference. The present writ petition is nothing but a camouflaged litigation to settle the Trade Union rivalries which can not be permitted. The changes introduced by the impugned settlement are not illegal. The writ petition is totally devoid of substance merits. It is according dismissed with costs. Counsel fee, Rs. 1000/- if certified.