Allahabad High Court
M/S United Spirits Ltd. Thru' Its Senior ... vs State Of U.P. & 4 Others on 20 August, 2018
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 36 Case :- WRIT - C No. - 40809 of 2015 Petitioner :- M/S United Spirits Ltd. Thru' Its Senior General Manager Respondent :- State Of U.P. & 4 Others Counsel for Petitioner :- A.C. Srivastava,Anay Kumar Srivastava Counsel for Respondent :- C.S.C.,Jamal Ahmad Khan,R.N. Yadav,Rahul Mishra,Sumit Daga Hon'ble Mrs. Sunita Agarwal,J.
The present petition is directed against the orders dated 14.07.2015, 22.04.2015 passed by the Assistant Labour Commissioner, Meerut namely respondent no.2 as also the recovery certificate dated 30.05.2015 issued by him in the proceeding under Section 6H(1) of Industrial Disputes Act' 1947 (herein after referred as Act' 1947).
Brief facts of the case relevant to decide the controversy at hand are that a settlement was arrived between the management of the petitioner and staff members on 08.10.1999. The memorandum of settlement was registered under Section 6(B) of the Act' 1947 read with the U.P. Industrial Disputes Rules' 1957 on 04.11.1999.
The stand taken by the petitioner-employer is that the respondent no.5 namely Sri Jagdish Prasad Sharma, an employee did not sign the memorandum of settlement arrived on 08.10.1999. After expiry thereof, another settlement dated 28.10.2004 was arrived between the management and the permanent workmen of Shaw Wallace Distilleries ltd. which is a unit of Central Distillery & Breweries, Meerut Cant, U.P. The said settlement was also registered under Section 6(B) of the Act' 1947 on 04.04.2005. The subsequent settlement dated 28.10.2004 registered on 04.04.2005 was also not signed by the respondent no.5 rather he filed objections against registration of the same. However, it was subsequently accepted by respondent no.5 and benefit thereof had been extended to him, much earlier.
The contention of the petitioner is that after getting benefit of the settlement dated 28.10.2004, the respondent no.5 and two other employees filed application dated 09.05.2005 under Section 6H(1) of the Act' 1947 before the Deputy Labour Commissioner with the prayer to recover the amount mentioned in Annexure appended to the said application which pertain to previous settlement dated 08.10.1999.
The submission is that the settlement dated 08.10.1999 was arrived between the staff members individually and the management. The respondent no.5 is neither party nor signatory to the said settlement and, as such, benefit thereof cannot be extended to him. It is contended that the writ petition no.61580 of 2008 filed by the respondent no.5 claiming bonus, HRA, Ex. Gratia and other benefit from the year 1999 till 2005 as also the benefits as per the settlement dated 08.10.1999 registered on 04.11.1999 and 28.10.2004 registered on 04.04.2005 has been dismissed by this Court vide judgement and order dated 01.02.2009. After dismissal of the claim of the petitioner by this Court, the application under Section 6H(1) was not maintainable.
It is contended that the application dated 09.05.2005 under section 6H(1) was rightly rejected on 10.08.2010 by the Assistant Labour Commissioner, Meerut with the observation therein that the benefit of the settlement dated 08.10.1999 could not be extended to the workmen in as much as there was a dispute regarding the said settlement being applicable in the case of the applicant. For recall of the order dated 10.08.2010, the respondent no.5 filed a review application on 16.11.2011. On the said application, notices were issued by respondent no.2 and upon service, the petitioner filed its objection on 24.09.2012. Another objection dated 02.07.2013 was filed by the petitioner to the affidavit dated 18.03.2013 filed by respondent no.5. Vide order dated 22.04.2015, the respondent no.2 had illegally allowed the review application filed by respondent no.5 and directed the petitioner to produce documents showing information, if any, given to the workmen respondent no.5 calling him to sign the settlement or the documents showing refusal by him.
Pursuant thereto, a reply dated 07.05.2015 was filed by the petitioner stating therein that the settlement was affixed on the notice board of the factory as per the procedure and there was no requirement of sending notices to each employee, individually. Submission is that the petitioner made efforts to reconcile the matter, however, all their efforts failed and the application moved by the petitioner dated 27.05.2015 and 30.05.2015 had illegally been rejected while issuing recovery certificate dated 30.5.2015. The recovery citation dated 12.06.2015 has accordingly been issued by the Tehsildar. An application dated 15.06.2015 was moved by the petitioner for recall of orders dated 22.04.2015 and 30.05.2015. The said application was illegally rejected vide order dated 14.07.2015 and hence this writ petition.
Challenging the orders impugned, the submissions of learned counsel for the petitioner are two folds. Firstly, it is vehemently contended that the respondent no.2 had no jurisdiction to review its own order dated 10.08.2010 in as much as, it has no power to review under the Act' 1947. The recall order dated 22.04.2015 is thus wholly without jurisdiction, consequently, the order to issue recovery certificate dated 30.05.2015 is also liable to be recalled. The order dated 14.07.2015 rejecting recall application of the petitioner is, accordingly, an illegal order The second submission is on the merits of the order dated 22.04.2015. It is vehemently contended that the respondent no.5 was not signatory to the settlement dated 08.10.1999, his claim, therefore, could not have been allowed under Section 6H(1) which is in the nature of execution proceeding. Submission is that the order dated 10.08.2010 categorically records that there was a dispute regarding the applicability of the settlement dated 08.10.1999 and availability of the benefits thereof to respondent no.5. The said question was, therefore, required to be adjudicated in an industrial dispute, if raised, by respondent no.5. In absence of any such adjudication, it was not open for the Deputy Labour Commissioner to entertain the application under Section 6H(1) for providing benefit of the settlement dated 08.10.1999. Thus, on both counts, the orders impugned are not justifiable.
Reliance is placed upon the judgement of the Apex Court in Kapra Mazdoor Ekta Union Vs. Management of M/s. Birla Cotton Spinning and Weaving Mills, Ltd & others reported in 2005 (13) SCC 777 to submit that the Deputy Labour Commissioner has no jurisdiction to entertain the application for recall of an order passed on the merits of the claim of the parties. It is contended that the judgement of Apex Court in Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal & others reported in 1980 (Supp) SCC 420 has been taken note of by the Apex Court to hold that only in case of an ex-parte award, the tribunal would have power to review its award. In a case where the order has been passed after hearing both the parties, the review is beyond jurisdiction. It is contended that the settlement arrived at between the employer and the workmen otherwise than in the course of the conciliation proceeding is binding only on the parties to the agreement that too after the same is registered under Section 6(B) of the Act' 1947. Any settlement outside conciliation proceeding cannot be extended to the workmen who are not party to the same or who have not signed the said settlement.
Sri Jagdish Prasad Sharma, the respondent no.5 appear in person. He vehemently submits that the act of the petitioner in denying benefit of the settlement dated 08.10.1999 is nothing but an act of unfair labour practice, practised by the petitioner. It is not open for the petitioner to restrict the benefits of the settlement to few workers and to deny the same to others. The employer had entered into settlement with few workers in order to pursue their illegal motive so as to suppress the demands raised by the workmen. The respondent no.5 and three other employees namely Shyam Lal, Shanti Swaroop Sachdeva and Guru Charan Singh were opposing the proposal of the employer and in retaliation thereto they were not allowed to sign the settlement dated 08.10.1999. It is submitted that merely because the respondent no.5 was protesting in the larger interest of the workmen, he cannot be kept out of the settlement. More-so, when he was demanding conferment of benefits of the said settlement for a long time.
With reference to the averments made in the affidavit dated 18.03.2013 filed before the respondent no.2, it is submitted that the benefit of the settlement dated 08.10.1999 had been extended to the remaining three above noted employees who were protesting with the respondent no.5 and also were not party and signatory to the said settlement.
The averments of the said affidavit with regard to payment of benefit of the settlement dated 08.10.1999 to other three employees as noted above has not been denied by the petitioner as is evident from their reply dated 02.07.2013 appended as Annexure no.'14' to the writ petition.
Placing reliance upon the judgement of Apex Court in K.C.P. Limited Vs. Presiding Officer & others reported in 1997 (1) SCC 211 as also in Hari Fertilizers (M/s.) Vs. State of U.P. reported in 2000 (3) UPLBEC 2153, it is submitted that the settlement, if arrived, with the majority of the workmen would also be applicable on the workmen who were contesting it as being unfair or unjust. Any settlement would be binding on the management and the workers, uniformly.
On the question of review, with reference to the judgement of the Apex Court in Kapra Mazdoor Ekta Union (Supra) relied upon by this Court in M/s Indo Gulf Industries Vs. State of U.P. & others reported in 2016 (3) ADJ 409, it is contended that the Prescribed Authority or the Deputy Labour Commissioner, as the case may be, has power to recall its order on the ground on which procedural review is permissible, even in absence of any statutory power to review.
In the instant case, the application under Section 6H(1) of the Act' 1947 was rejected vide order dated 10.08.2010 by the respondent no.2 on wrong premises that it was not maintainable in view of the dispute regarding settlement being signed by respondent no.5. Submission is that the said approach of respondent no.2 was illegal in as much as, the dispute as to whether the settlement was binding upon the employer and whether any money was due to the workmen from the employer under the said settlement was very much referable to the powers of respondent no.2 under Section 6H(1) of the Act 1947. Since the claim of the respondent no.5 was under the settlement dated 08.10.1999 admittedly, arrived at between the employer and majority of the workmen, there was no requirement of raising an industrial dispute and adjudication thereof by the Industrial Tribunal in as much as, the benefit thereof could not have been denied to the workman.
With reference to the language of Section 6H(1) of the Act' 1947, it is submitted by respondent no.5 that any money due under the settlement within the meaning of Act' 1947 is recoverable by issuing a certificate by the competent authority under the said provision. The respondent no.2 being the competent authority to determine the said issue has rightly recalled the order dated 10.08.2010 in exercise of its power of procedural review to undo the wrong done by its predecessors on wrong appreciation of legal provisions.
The order of recall dated 22.04.2015 and the order dated 30.05.2015 to issue recovery certificate pursuant thereto, cannot be faulted with. The order dated 14.07.2015 in rejecting recall application moved by the petitioner is justified in the facts and circumstances of the case.
Having considered the submissions of learned counsel for the parties and perused the record, the first question to be answered by this Court is with regard to the jurisdiction of the tribunal or the Deputy Labour Commissioner for review/recall of the order passed by it. The scope of review/recall by the Industrial Tribunal is no longer res-integra with the law laid down by the ApexCourt in Grindlays Bank Ltd. (supra) which has been reiterated from time and again. As per the settled legal position, the Prescribed Authority or the Industrial Tribunal, as the case may be under the Act' 1947, has no power to review its order which would amount to recall of the order on merits i.e. the substantive review on merits of the claims of the parties is not within the jurisdiction of the Industrial Tribunal in absence of any statutory power of review.
However, at the same time on the principle that every judicial or quasi-judicial authority has inherent power to recall an order passed under a mistaken belief or in violation of order of principles of natural justice, such order can be recalled by the said authority in exercise of its power for procedural review. In other words, any order passed as a result of the procedural mistake or in absence of the contesting party, can be recalled on the satisfaction of the judicial or quasi-judicial authority in its inherent power to correct the mistake committed by it. The procedural illegality, if any, committed by the quasi-judicial authority or Court which goes to the root of the matter, can be rectified by invoking power of procedural review. The observations of the Apex Court in Kapra Mazdoor Ekta Union (supra) are relevant to be quoted as under:-
"Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again."
Applying the said legal principle in the fact of the present case, it may be noted that the Assistant Labour Commissioner passed the order dated 10.08.2010 on an erroneous assumption that the question as to whether the benefits of the settlement dated 08.10.1999 were available in the case of the applicant-workmen was required to be adjudicated by the Industrial Tribunal on raising of an industrial dispute.
Testing this, it may be seen that in view of nature of the proceedings under Section 6H(1) of the Act' 1947, the Labour Commissioner is authorized to execute the terms of the settlement, if any, arrived between the workmen and the employer. The money, if due to the workmen, under a settlement with the employer, the recovery may be issued by the Labour Commissioner on an application moved by the workmen. The dispute, however, if any, with regard to the terms of the settlement, which would require adjudication by leading evidences, cannot be decided in the proceeding under Section 6H(1). But the question as to whether the settlement would apply to the applicant-workmen and further that whether he was entitled for benefit thereof was well within the jurisdiction of the Assistant Labour Commissioner for determination in the proceeding under Section 6H(1) of the Act' 1947.
For the said reasons, the application moved by the respondent no.5 under Section 6H(1) could not have been rejected by the Assistant Commissioner, Labour on the reasoning given in the order dated 10.08.2010. Merely because there was a dispute raised by the employer with regard to the applicability of the benefits of the settlement to the applicant-workmen, the question could not be relegaged to be adjudicated by raising an industrial dispute. The said question could very well be addressed by the Assistant Labour Commissioner in the proceedings for execution of the terms of the settlement.
For the reason that a procedural error was committed by the Assistant Labour Commissioner in passing the order dated 10.08.2010, it was rightly recalled on an application moved by the workmen vide order dated 22.04.2015. After recall, time was granted to the employer to place material before the respondent no.2 to establish that the benefit of the settlement dated 08.10.1999 could not be extended to the applicant-workmen, in as much as, he did not sign the agreement. Specific query made by the Assistant Labour Commissioner was to be answered by the employer through documentary evidences to establish that the workmen was called upon/intimated to sign the settlement and he had refused to do so.
In this view of the matter, the order dated 22.04.2015 passed by the Assistant Labour Commissioner, Meerut/respondent no.2 for recall of the order dated 10.08.2010, would fall within the meaning of the procedural review and cannot be said to be passed without jurisdiction. The said order, therefore, cannot be faulted on this ground. The recall application moved by the petitioner-employer, therefore, has rightly been rejected vide order dated 14.07.2015.
Now the second question remains with regard to the applicability of the settlement dated 08.10.1999 in the case of respondent no.5 and that whether the benefits thereof can be extended to him though he did not sign the same.
To answer the said question, it would be relevant to note certain facts reflected from the record. The settlement dated 08.10.1999 was arrived between the members of the staff regarding pay-scale and other conditions of services in view of the fact that the period of the last settlement dated 08.11.1996 had expired by then. The terms of the settlement dated 08.10.1999 was operative for a period of five years i.e. w.e.f from 01.09.1999 to 31.08.2003. For ready reference, the relevant terms of the settlement dated 08.10.1999 are being quoted as under:-
1. Scope and Applicability The terms of this Settlement after the same have been duly registered under Section 6(B) and rule 5(1) of the U.P. Industrial Dispute Act and Rules shall be applicable to all permanent staff members employed by the company who are signatory to this settlement.
That after an application for registration of this settlement under section 6-B and rule 5(1) has been moved if any staff wishes to sign the settlement, the benefits under this settlement shall only accrue to him w.e.f the date of signing of the settlement.
2. Duration of Settlement The terms of this settlement shall be operative and binding on the parties for a period of (five) years w.e.f 1st September 1998 to 31st August 2003. This settlement shall continue to be in operation and be binding on both the parties till its completion of the stipulated period of operation and until this settlement is replaced by another settlement. The parties shall maintain perfect harmony, Industrial peace and cordial working relation.
3. Grade & Pay Scale The existing Grade and Scale of UPDA shall be replaced by a new Grade and Scale of pay which shall be applicable to all permanent staff as given below w.e.f 01.9.98."
As per clause '1' of the terms of the settlement regarding "Scope and applicability", it was applicable to all permanent staff members employed by the company who were signatory thereof. The said clause also states that after the settlement is registered under Section 6-B of Act' 1947 read with rule 5(1) of the Rules' 1957, if any staff wished to sign the settlement, the benefit thereof would be extended to him from the date of signing thereof.
Thus from a careful reading of the terms of the settlement dated 08.10.1999 this much can safely be concluded that the settlement dated 08.10.1999 regarding the pay scale and other conditions of services of the staff members/employees of the Central Distilleries and Breweries ltd. was binding on the signatories to the same and the benefits thereof were extendable to all permanent employees/workmen who were ready and willing to sign the settlement during the period of its subsistence uptil 31.08.2003.
The submission of learned counsel for the petitioner that the applicability of the settlement was restricted to its signatories as on 08.10.1999 cannot be accepted for the said reasoning.
His alternative argument that the respondent no.5, at no point of time, came forward to sign the settlement has been turned down by the Assistant Labour Commissioner/respondent no.2 with the categorical finding that the petitioner-employer has not been able to establish that the workmen was called upon to sign the settlement or that he refused to sign it.
The statement of the petitioner that the notice with regard to the settlement was displayed at the notice board of the factory and it was the duty of the workmen to come forward to accept the same and sign it, would not sufficient to interfere in the order impugned for the reason that a dispute was subsisting between the petitioner-employer and four workmen including the respondent no.5 who were protesting against the terms of the settlement on the ground that it was unfair and unjust.
A categorical assertion has been made by the respondent no.5 in his affidavit dated 18.03.2013 filed before the Assistant Labour Commissioner that other three employees namely Sri Shyam Lal, Shanti Swaroop Sachdeva and Sri Guru Charan Singh were given benefit of the settlement dated 08.10.1999 at a later point of time. Relevant paragraph no.10 of the aforesaid affidavit is being quoted as under:-
10- ;g fd 'kiFkdrkZ ds vykok rhu Jfed loZ ';keyky] Jh 'kfUr Lo:Ik lpnsok o Jh xqpj.k flag dks le>kSrk fnukad 08-10-1999 dk ykHk fn;k tk pqdk gSA fdUrq 'kiFkdrkZ dks fnukad 08-10-1999 dks dksbZ ykHk ugha feyk rFkk le>kSrk fnukad 04-04-2005 dk iwjk YkkHk ugha feyk gS ftls ikus dk 'kiFkdrkZ iw.kZ vf/kdkjh gSA osru fLyi Jh xqpj.k flag fnLkEcj 2010 dh Nk;kizfr layXu *8* gSA ** In reply to the said assertion, in the objection dated 2.07.2013, there is no denial rather it was reiterated by the petitioner-employer that repeated request of the applicant seeking benefit of the settlement dated 08.10.1999 was wholly uncalled for.
It may also be relevant to note that after expiry of the period of settlement dated 08.10.1999, a new settlement was arrived on 28.10.2004, terms of which were also objected/protested by the respondent no.5 including other three employee (above named). On the presentation of the said settlement for registration under Section 6-B, an objection was raised by respondent no.5 on the ground that the said settlement was unjust and unfair and run against the larger interest of the workmen.
Despite the said protest, while passing the order dated 04.04.2005 accepting registration of the settlement, it was observed by the Deputy Labour Commissioner that the benefit of the settlement dated 28.10.2004 would be extended to four protesting employees including respondent no.5 herein.
It may also be noteworthy that the order of registration of settlement dated 08.10.1999 passed by the Deputy Labour Commissioner under Section 6-B has not been brought on record.
This apart, respondent no.5 has demonstrated that he was seeking benefit of the settlement dated 08.10.1999 by moving applications from time to time before the employer but despite his repeated request, benefit thereof were not extended to him.
The said fact itself demonstrates that the respondent no.5 was ready to accept the terms of settlement dated 08.10.1999 subject to the protest launched by him.
Further, there is no dispute about the fact that the settlement dated 08.10.1999 was arrived between the management and workers with regard to the revision of the pay scales and altering other conditions of their services and that the majority of the workers accepted the said settlement. It was applicable to all permanent staff employed by the company and that the respondent no.5 was a permanent employee of the company. It was, therefore, not open for the employer to discriminate and deny benefits of the said settlement to the protesting employees including the respondent no.5. Moroever, other three employees who were protesting the settlement dated 08.10.1999 being unfair and unjust alongwith the respondent no.5, were also extended benefit thereof at a later point of time which fact is admitted to the petitioner/employer.
At this stage, reference may also be made to the judgement of Apex Court in the case of KCP Ltd. Vs. Presiding Officer, (supra) wherein the terms of settlement were extended to the contesting workmen and it was held that the settlement arrived with the majority of the workers shall be binding on the contesting workmen also.
Lastly, the submission of learned counsel for the petitioner that the settlement-in-question being registered under Section 6-B of the Act' 1947 cannot be said to be a settlement arrived in a conciliation proceeding and, therefore, benefit thereof cannot be extended to the workers who did not sign the same is rejected for the conclusion drawn herein above.
The best course for the employer was to allow the protesting workmen to sign the settlement, subject to their objections/protest.
In any case, the respondent no.5 could not be discriminated and denied benefits of the settlement dated 08.10.1999.
For the above discussion, this Court is of the considered view that the Assistant Labour Commissioner has committed no illegality in arriving at the conclusion that the respondent no.5 was illegally denied benefit of the settlement dated 08.10.1999. There is no dispute about the computation made by the Assistant Labour Commissioner while issuing recovery certificate dated 30.05.2015. In view thereof, the order dated 30.05.2015 passed by the Deputy Labour Commissioner in issuing recovery certificate for recovery of 1,91,610/- against the petitioner-employer cannot be faulted with.
No interference is called for in the orders impugned.
The writ petition is found devoid of merits and hence dismissed.
Order Date :- 20.8.2018 Himanshu