Madras High Court
Spencer International Hotels Ltd. And ... vs Asst. Commissioner Of Labour And Others on 20 August, 1991
Equivalent citations: (1993)IILLJ878MAD
ORDER
1. Since the parties to the above proceedings are one and the same and the issues arising for consideration overlap and common submissions have been made, they are dealt with together.
2. W.P. 15637 of 1988 has been filed for the issue of a writ of mandamus, directing the respondents not to take any steps against the petitioner for the alleged violation and non-implementation of the decision dated October 31, 1988 of Thiru. S. Rajasubramanian, formerly Commissioner of Labour and now Sub-Collector, Tindivanam as the said decision cannot be equated to an "Award" in pursuance of the letter dated December 2, 1988.
3. W.P. 15638 of 1988 has been filed for the issue of a writ of declaration, declaring that the communication dated October 31, 1988 from Thiru. S. Rajasubramanian formerly Commissioner of Labour, Madras, now Sub-Collector, Tindivanam cannot be equated to an "Award" under the provision of the Industrial Disputes Act and the Rules framed thereunder and consequently to hold that the petitioner herein cannot be held bound by the same.
4. The petitioner, in the common and identical affidavit filed in support of the above writ petitions, states as follows :- Referring to the factual background relating to the ownership of the petitioner-company prior to 1978 and thereafter, it is contended that on November 27, 1986 M/s. (1) V. Chellam (2) Jesu Tamil Mani (3) V. Muniaswamy and (4) P. Chandrasekar were suspended, pending enquiry into the charges and in the meanwhile, the petitioner received a strike notice from the Connemara Hotel Employees Union dated December 3, 1986 informing the management that the workers would go on a strike on or after December 16, 1986 for alleged unfair labour practice. Domestic enquiry as regards the charge sheets framed against the above mentioned four workmen was said to have commenced with effect from January 15, 1987 and was in progress. During the progress of the enquiry, it is claimed the petitioner has received notice from the Labour Officer-II and thereupon they participated in the proceedings before the Labour Officer. Another strike notice dated December 14, 1987 was also said to have been received from the Connemara Hotel Employees Union and the management seems to have forwarded the letter to the Labour Commissioner setting forth in detail the industrial relation scene at Connemara Hotel and with reference to the said strike notice also, a letter dated December 18, 1987 was said to have been received asking the petitioner to appear before the Labour Officer-II. It is claimed that the workers were adopting dilatory tactics and at that stage, the then Commissioner of Labour Mr. Rajasubramanian is said to have called the management and the Union representing the above mentioned four workmen for talks and a 12(3) settlement dated February 18, 1988 was entered into. The terms of the Settlement are said to be as follows :-
"It is agreed that the issue of the following workers will be decided by Mr. S. Rajasubramaniam, I.A.S. Commissioner of Labour as final and binding :
1. Thiru. V. Chellam
2. Thiru. Jesu Tamil Nadu
3. Thiru. V. Muniaswamy; and
4. Thiru. P. Chandrashekar.
It is also agreed that the management will produce enquiry proceedings upto findings (they should not be imposed any punishment) before March 2, 1988."
5. While so, the enquiry findings as contemplated under the Settlement seem to have forwarded to the then Commissioner of Labour Thiru. K. Malaiswamy on July 18, 1988 and August 3, 1988. It is also stated in the affidavit that the petitioner management received a latter dated August 18, 1988 from Thiru. S. Rajasubramaniam with a copy marked to the Union concerned, calling upon the parties to meet him for a discussion with all relevant records. The management admittedly appeared before the said Rajasubramaniam and as could be seen from the decision rendered by the said Rajasubramaniam on October 31, 1988 and from time to time, the parties, both management as well as the workers' representatives, were presenting themselves and making their respective submissions. In the decision dated October 31, 1988, the said Rajasubramaniam concluded his proceedings and passed the following order :-
"Since both the parties have agreed to abide by my decision, after weighing both sides' arguments and the documents filed before me and in order to discipline the workmen I order as under :-
The management shall issue suspension order for ten days as specific punishment after the receipt of this order. For the period of suspension pending enquiry, the workmen will not be eligible for any benefits other than the subsistence Allowance. However, they are allowed continuity of service."
Thereupon, on December 2, 1988, the Assistant Commissioner of Labour (Head Quarters) was said to have issued a communication to the management calling upon them to show-cause as to why action should not be taken against the management for the alleged violation of the settlement under Section 12(3) of the Act dated February 18, 1988 and also for not implementing the resultant award dated October 31, 1988 passed by Rajasubramaniam, former Commissioner of Labour.
5. The management seems to be of the view that S. Rajasubramaniam has exceeded the terms of the settlement in directing the management on the course of action should take, which is the prerogative of the management and which has not been abrogated in the terms of the settlement dated February 18, 1988 and consequently failing compliance with the same, which according to the petitioner, has no sanctity of law, the above writ petitions have been filed. An Additional Affidavit has also been filed on behalf of the petitioner bringing it to the notice of this Court that subsequently, by an order of dismissal dated November 4, 1988 passed by the management, the services of the four workmen were put an end to and that talks were held by the management and the workmen before the Special Deputy Commissioner of Labour who recorded a proceeding on May 23, 1989, that with regard to the issue regarding non-employment of 4 workmen, the parties will pursue further negotiations to arrive at an amicable and conclusive settlement based on the advice of the Special Deputy Commissioner of Labour. It is further stated therein that thereafter V. Chellam resigned and a settlement under Section 18(1) of the Industrial Disputes Act dated October 7, 1989 was entered into with him and he is said to have received amounts in full and final settlement of all his claims against the management. Likewise, M. J. Tamilmani appears to have accepted the order of termination dated November 4, 1988 and entered into a settlement under Section 12(3) dated May 29, 1990 in full and final settlement of all his claims after receiving the money. So far as the remaining two workmen viz. Mr. V. Muniaswamy and P. Chandra Sekaran are concerned, they are said to have raised disputes before the Labour Officer and no their failure in the conciliation proceedings, the matter seems to be now pending before the I Additional Labour Court, Madras in I.D. No. 206 of 1991 (V. Muniaswamy) and I.D. No. 522 of 1990 (P. Chandra Sekaran).
6. Mr. Sanjay Mohan, learned counsel appearing for the petitioner, While reiterating the submissions made in the pleadings, contended as follows :- (1) The settlement dated February 18, 1988 is no settlement under the Industrial Disputes Act, 1948 and it is only an agreement, the reason being an agreement will not be a settlement. According to the learned counsel, the settlement dated February 18, 1988 does not conform to the requirements of Section 2(p) of the Act. Reliance is placed upon the decision of this Court in T.U.C.S. Ltd., Madras (By special Officer) v. S. Loganathan and Others 1986-II-LLJ-225. (2) The decision of Rajasubramaniam dated October 31, 1988 is not an award, because the requirements of the Industrial Disputes Act having not been complied with in that neither the settlement dated February 18, 1988 nor the decision dated October 31, 1988 has been published in the Government Gazette as required under the provisions of the Industrial Disputes Act. (3) On the date of the decision viz., October 31, 1988 as could be seen from the very proceeding, Rajasubramaniam was not the Commissioner of Labour and, therefore, his award was non-est and a nullity. (4) Inasmuch as the two workers have already got their claims settled in full and final and ceased to be in the employment of the petitioner and the two surviving workers raised disputes before the Labour Court which are pending, the question of their non-employment or the question of taking further action on the settlement dated February 18, 1988 or the decision dated October 31, 1988 does not arise and that the claims of the workers if any have to be got adjudicated in the proceedings before the Labour Court. Learned Counsel for the petitioner relied upon the decisions in Ramakrishna Kulwantrai Steels (P) Ltd. v. Their workmen (1977-I-LLJ-382), Krishnaveni Transports & Other v. Special Deputy Commissioner of Labour, Madras & Others (1989-II-LLJ-245), Karnal Leather Karamchari Sanghatan (Regd.) v. Liberty Footwear Company (Regd.) and Ors (1989-II-LLJ-550) Madras Machine Tools v. Spl. Dy. Commr. of Labour (1989-II-LLJ-331) and Kathayee Cotton Mills Ltd. v. District Labour Officer and others (1989-I-LLJ-417) in support of the Submission that the absence of publication of the agreement and failure to comply with the procedure prescribed under Section 10-A(3) of the Industrial Disputes Act and Section 17 renders the proceedings sought to be enforced illegal and unenforceable so far as the writ petitioner is concerned.
7. Mr. T. Fenn Walter, learned counsel appearing for the third respondent-Union, submitted that the decisions relied upon by the learned counsel for the petitioner turns on the facts and circumstances of the case and the issues considered therein and that so far as the present case is concerned, the writ petitioner admittedly entered into a settlement under Section 12(3) of the Industrial Disputes Act, 1947 and having agreed to abide by the decision of Rajasubramaniam, Commissioner of Labour which has also been agreed to be final and binding and having further participated at all relevant points of time in the proceedings before him the petitioners are not entitled to resile back from the stand taken earlier and file these writ petitions invoking the extraordinary jurisdiction of this Court under Article 225 of the Constitution of India. The learned counsel further submitted that the relief as prayed for is unjust and inequitable and this Court should not grant any relief in favour of the petitioner, and the conduct of the petitioner should be considered to be a disentitling factor in the writ petitioner either invoking or getting the relief from this Court under Article 226 of Constitution of India. The learned counsel also submitted that the terms of settlement were that the matter should be left to the decision of S. Rajasubramaniam and that the parties to the said decision being final and binding and the fact that he was holding the post of Commissioner of Labour by the office. Consequently, according to the learned counsel for the third respondent union the fact that the said Rajasubramaniam was shifted from the position of Commissioner of Labour did not really matter particularly when without any objection or protest, the writ petitioner participated by making his appearance and taking part in the proceedings before him.
8. I have carefully considered the submissions of the learned counsel appearing on either side and in my view, the writ petitioner will not be entitled to invoke the jurisdiction of this Court under Article 226 of the Constitutional of India for more than one reason. The petitioner admittedly entered into a settlement under Section 12(3) of the Industrial Disputes Act and that the petitioner participated in all subsequent follow-up action without raising any objection or protest to the court of action adopted by the person nominated for the purpose in spite of the fact that the notices issued for such enquiry specifically referred to the settlement having been entered into under Section 12(3) of the Act. Likewise, no objection was raised to the continuance of the proceedings by Rajasubramaniam and the petitioner participated in the proceedings before him. It is only when the diocesan was not to the acceptance of the writ petition, they have thought fit to resile from their steps and by taking an attitude of reprobation has come up with the above writ petitions. The said conduct and attitude, in my view, disentitle them from invoking the extraordinary jurisdiction of this Court. Participating in the proceedings, taking a chance for a decision in their favour without any objection and also giving an impression that they are acting upon or adhering to the terms of the settlement and thereby they having subjected themselves to such proceedings, it is not open to them and as a matter of fact they are estopped from resiling their steps and this Court, in the exercise of its extraordinary jurisdiction, ought not to lend its helping hand to such a person to wriggle out of the solemn commitments made. That apart, the notice in question is only a show-cause notice calling upon them to show-cause as to why for the alleged non-compliance with the proceedings referred to therein, action should not be taken under Section 29 of the Industrial Disputes Act. Section 29 of the Industrial Disputes Act only provides for prosecution for the alleged offence of committing a breach of any term of any settlement or an Award. The petitioner should first of all show cause against the proposed action to the authority which has issued the notice and invite a decision on their submissions or objections. Even if a prosecution is lodged, the petitioner could not be said to be in any way prejudiced since it would be always open to them to contend before the Court concerned that the essential ingredients warranting their prosecution do not exist and convince the said Court of the illegality and futility of the prosecution. While so, it is not open to the petitioner to forestall the competent authorities and statutory functionaries from exercising their powers by rushing up to this Court seeking for a decision of the various issued. For all these reasons, I consider that the petitioner will be disentitled to the relief sought for from this Court and this Court would be well justified in declining to interfere in the matter, in exercise of its undoubted discretion.
9. The above writ petitions deserve to be dismissed also without going in to the merits of the claim on yet another ground. The learned counsel also raised a plea that reference was one falling within the scope of Section 10-A of the Act and that being the position, the failure to comply with the procedural prescriptions contained therein vitiates the consequent awards said to have been made. The decisions relied upon for the petitioner relating to this aspect themselves would go to show that in those cases the writ petitions were held on the view to be maintainable that the proceedings which were the subject matter in those case were referrable to Section 10-A. So far as the present case is concerned, even the very submissions of the learned counsel for the petitioner proceeds on the ground that neither the 12(3) settlement can be said to be the statutory settlement nor the decision could be said to be an award as contemplated under Section 2(p). As a matter of fact, the learned counsel in support of the said stand placed heavy reliance upon the stand taken in the counter affidavit that the decision given by the second respondent is not an award as contemplated under Section 10-A of the Act, but it should be deemed to be an award only for the purposes of implementation by the petitioner. In para 9 of the Counter Affidavit on which much reliance was placed by the counsel for the petitioner, it has been contended as follows :-
"The award/decision given by the second respondent is not an award as referred to under Section 10-A of the Industrial Disputes Act and that therefore, the procedures laid down under Section 10-A need not be complied with."
In the case before the Full Bench in the decision reported in 1977-I-LLJ 382 (supra), at the time of argument, there was a change in the stand taken in the counter affidavit and it was actually contended that the decision or award was one under Section 10-A of the Act. No such submission disowning the stand taken in the counter affidavit of the respondent which the learned counsel for the petitioner also want to take advantage of, had been taken before me. If it is to be that as contended by the counsel for the petitioner, the settlement as well as the decision/award cannot be considered to be one as contemplated in law and the referrable to any provisions of the Act, it is all the more necessary that the writ petition has to be rejected as not maintainable and consequently this Court cannot enter upon an adjudication of the validity of such non-statutory orders. In view of the above conclusions, I am not going into the other issues raised on behalf of the petitioner.
10. For all the reasons stated above, the writ petitions fail and shall stand dismissed but in the circumstances there will be no order as to costs.