Gujarat High Court
Gandhidham Nagarpalika Adipur (Kutch) vs R.C. Israni And Ors. on 16 January, 1992
Equivalent citations: (1993)ILLJ432GUJ
Author: J.M. Panchal
Bench: J.M. Panchal
JUDGMENT A.N. Divecha, J.
1. The grievance voiced by the Petitioner in this petition under Arts. 226 and 227 of the Constitution of India relates to non-acceptance of the settlement arrived at between the Petitioner and Respondent No. 2 in toto by the Industrial Tribunal while making its award on October 24, 1979 in Reference (IT) No. 18 of 1978.
2. It may be mentioned at this stage that this petition is purported to have been made both under Arts. 226 and 227 of the Constitution of India. What challenged in this petition, as aforesaid, is the award passed by the Industrial Tribunal. Such award can be challenged only under Art. 227 of the Constitution of India in view of the Division Bench ruling of this Court in the case of Jashubhai Hiralal Gandhi v. Competent Authority & Deputy Collector, Ahmedabad reported in (1990) 2 Guj LH 609. We are in respectful agreement with the view taken by the Division Bench in the case of Jashubhai Hiralal Gandhi (supra). In that view of the matter, we treat this petition as only under Art. 227 of the Constitution of India.
3. The facts giving rise to this petition may be summarised thus : The Petitioner is a Municipality deemed to have been constituted under the Gujarat Municipalities Act, 1963. Respondents Nos. 2 and 3 are two trade unions representing different employees working in the Petitioner-Municipality. The Industrial Tribunal in its impugned award has styled Respondent No. 2 as the sponsoring union and Respondent No. 3 as the second union for the sake of convenience. For the purpose of this judgment, we adopt the same phraseology for describing these two rival unions arranged as Respondents No. 2 and 3 in this petition. It appears that on implementation of the recommendations of what is popularly known as the Desai Pay Commission through the framing of the Gujarat Civil Services (Revision of Pay) Rules, 1975, the sponsoring union submitted a charter of demands for revision of the pay scales of various categories and classes of employees serving in the petitioner-Municipality. It appears that the conciliation proceedings undertaken with respect to the charter of demands failed. Thereupon at the joint request of the parties an industrial dispute was raised by the Assistant Commissioner of Labour at Rajkot and it was referred to, under section 10(2) of the Industrial Disputes Act, 1947 (the 'Act' for brief) to the Industrial Tribunal for its adjudication. It came to be registered as Reference (IT) No. 18 of 1978. Thereupon, the sponsoring union filed its statement of claim at Exh. 2 on the record of the adjudication proceedings. It appears that the second union wanted to be a party to the reference proceedings. It transpires from the impugned award that the second union made an application at Exh. 3 in the reference proceedings for being joined as a party thereto. It appears that on acceptance of that application the second union became party to the reference proceedings and submitted its statement of claim at Exh. 9 in the reference proceedings. The petitioner-Municipality appears to have filed its reply at Exh. 13 therein. It appears that during the pendency of the reference proceedings the sponsoring union and the petitioner-Municipality negotiated over the settlement of the disputes and ultimately arrived at some settlement. That settlement was submitted to the Industrial Tribunal for passing its award in terms thereof. A copy of this settlement is at Exh.16 on the record of the reference proceedings. Since the second union was not a party to the settlement, the Industrial Tribunal thought it fit to hear the second union on this settlement. In the meantime, some three individual workmen filed their objections indicating that the settlement was neither just nor reasonable. The three individual objectors to the settlement included Respondents Nos. 4 and 5 in this petition. Their objection were taken on record in the reference proceedings at Exhs. 20, 21, and 22. Thereupon the petitioner-Municipality filed its reply to the said objections at Exh. 23 on the record of the reference proceedings. It appears that the second union also filed its objections to the settlement on the very same day when the reply at Exh. 23 was filed by the petitioner-Municipality on January 4, 1979. The objections filed by the second union appears to have been taken on record at Exh. 26 in the reference proceedings. It appears that the parties did not want to lead any evidence in support of their rivals pleas contained in their respective statement of objection or reply. They thereupon filed a joint purshis at Exh. 27 on the record of the reference proceedings declaring their desire not to lead any evidence in the proceedings. After hearing the parties, the learned Presiding Officer of the Industrial Tribunal, by his award passed on October 24, 1979 in Reference (IT) No. 18 of 1978, was pleased to accept the settlement to the extent it pertained to the workmen of the petitioner-Municipality except Respondents Nos. 4 and 5 herein. For these two Respondents, the award suggested two different pay scales. This aggrieved the petitioner-Municipality and has therefore questioned the correctness of fixation of two different pay scales for Respondents Nos. 4 and 5 in this petition in the impugned award. A copy of the impugned award is at Annexure A to this petition.
4. The grievances voiced on behalf of the petitioner are three-fold. In the first place, it has been urged before us that the Industrial Tribunal ought to have accepted or rejected the settlement in toto; it could not have accepted or rejected it in part.
5. Secondly, it has been urged that there was no justification for carving out exception in favour of Respondents Nos.4 and 5 with respect to fixation of their pay scale de hors the settlement. It has also been urged that the Industrial Tribunal did not at all consider the case set up by and on behalf of the Municipality in the reference proceedings resulting into vitiation of the findings recorded in favour of Respondents Nos. 4 and 5 while fixing their pay scale de hors the settlement. It may be mentioned that Shri Zaveri for the sponsoring union has supported the Petitioner for the purposes of this petition. Shri Vyas for the second union has supported the award on the ground that the Industrial Tribunal did not find this settlement to be just and fair qua Respondents Nos. 4 and 5 and this Court in exercise of its limited powers under Art. 227 of the Constitution of India need not interfere with the award under challenge in these proceedings.
6. It has also been urged by Shri Vyas that what is sought to be canvassed in support of this petition at this stage on behalf of the petitioner was not canvassed before the Industrial Tribunal, and this Court need not permit the petitioner to canvass a new point in this petition under Art. 227 of the Constitution of India. It has also been urged on behalf of the Respondents Nos. 4 and 5 that the Industrial Tribunal has recorded certain findings of fact in favour of Respondents Nos. 4 and 5 on the basis of the material on record, and this Court not sitting in appeal over the award of the Industrial Tribunal need not upset such findings in exercise of its limited jurisdiction under Art. 227 of the Constitution of India. It may be mentioned at this stage that Shri Zaveri for the sponsoring union has urged before us that the Industrial Tribunal did not give proper weightage to the settlement arrived at between the Municipality and the sponsoring union.
7. As rightly relied on by Shri Shah for the petitioner, it has been observed in para 27 at page 328 in the ruling of the Supreme Court in the case of Herbertsons Ltd. v. Workmen of Herbertsons Ltd. reported in (1977 Lab IC 162) that the settlement has to be accepted or rejected as a whole. The relevant portion of the paragraph reads as under (para 27) :
"It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained, the Court will be slow to hold a settlement as unfair and unjust. The settlement has to be accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust."
8. It transpires from the wording of the award that the Industrial Tribunal accepted the settlement in part and rejected it with respect to the pay scales fixed for Respondents Nos. 4 and 5 thereunder. This it could not have done in view of the aforesaid ruling of the Supreme Court in the case of Herbertsons Ltd. (supra).
9. Even otherwise, the justification, for not accepting the settlement with respect to Respondents Nos. 4 and 5 has also no basis in view of the material on record as rightly urged before us by Shri Shah for the petitioner and Shri Zaveri for the sponsoring union. In order to appreciate this aspect of the case it would be quite proper to look at certain documents from the proceedings brought to our notice. It may be mentioned at this stage that we have been supplied copies of Exh. 13 (the written statement filed by the Municipality in the reference proceedings), Exh. 16 (the settlement arrived at between the petitioner-Municipality and the sponsoring union), Exhs. 20 and 22 (objections raised by Respondents Nos. 4 and 5 herein to acceptance of the settlement for the purpose of passing the award), Exh. 23 (the reply filed on behalf of the Municipality inter alia to the objections at Exhs. 20 and 22), and Exh. 26 (objections to the settlement raised by second union). Since Shri Vyas for the contesting Respondents did not question the genuineness of the copies, we chose to look into them for the purpose of appreciating the submission urged before us by the rival contestants though these documents do not form a part of the proceedings before this Court.
10. It may be mentioned at this stage that Respondent No. 4 was holding the post of Head Inspector Taxation at the relevant time and Respondent No. 5 that of Head Clerk in the Taxation Section at relevant time. Exh. 13 was annexed by one statement showing remarks against the revised grade of various officers and officials working in the Municipality for fixation of their revised pay scales in the light of the recommendations made by the Desai Pay Commission. The post of Head Clerk in the Taxation Section figures at serial No. 35. It was manned by Respondent No. 5 at the relevant time. In the remarks column it is shown that the post was inferior to that of Senior Clerk and was a promotional post for the cadre of Junior Clerks. The post of Head Inspector figures at serial No.37 in the statement accompanying the reply at Exh. 13. In the remarks column it is mentioned that the said post is equivalent to certain other posts of inspectors, such as the Food Inspector and the Shop Inspector. It has been further mentioned in the remarks column that the qualification prescribed for the post of Head Inspector in the Taxation Section was only S.S.C., and as such his grade should be lower than that of other inspectors (presumably because the prescribed qualifications for these posts were higher). It has been mentioned in the remarks column that the same grade is prescribed for the Head Inspector in the Taxation Section as is prescribed for other inspectors. This was the case set up by the Municipality in its reply to the statement of claims at Exhs. 2 and 9 submitted by the sponsoring and the second union on the record of the reference proceedings. At that stage the settlement between the petitioner-Municipality and the sponsoring union had not seen the light of the day. As observed earlier, the petitioner-Municipality negotiated over the settlement of the industrial dispute with the sponsoring union during the pendency of the reference proceedings. It appears that ultimately some settlement was reached between them. It was put into black and white on October 22, 1978 as transpiring from Exh. 16 in the reference proceedings produced before us. It was signed by the President of the petitioner-Municipality and by the General Secretary of the sponsoring union. It is not in dispute that this would answer the definition of the term "settlement" contained Section 2(p) of the Act. By this settlement, the pay scales suggested by the Municipality in the Annexure to its reply at Exh. 13 were more or less accepted for all categories and classes of employees in the services of the Municipality. As pointed out hereinabove, Respondents Nos. 4 and 5 herein objected to this settlement by means of their objections at Exhs. 20 and 22 respectively in the reference proceedings. Their objection to the settlement was couched in identical terms. Their grievance against the settlement was that they were discriminated with respect to fixation of their pay scales on the ground that one of them was the President of the second union and the other was its office bearer. Thereupon, as pointed out hereinabove, the petitioner-Municipality filed its reply at Exh. 23. A copy of the reply that is produced before us is in two parts. The first part pertains to Respondent No. 5 herein. Therein the Municipality has denied any kind of malintention on its part on the ground that Respondent No. 5 herein was an office bearer of the second union. It contained an annexure. In the annexure accompanying the first part of the reply at Exh. 23 two officials were shown to have been promoted to the post of Head Clerk in the Taxation Section from the post of Clerk and Typist. The first named official Smt. Keshwani was promoted from the post of Clerk (presumably Junior Clerk) to the post of Head Clerk (Tax) on March 8, 1971. She was thereafter promoted to the post of Senior Clerk. Respondent No.5 herein was promoted from the post of Typist to the post of Head Clerk (Tax) from August 1, 1975 presumably on occurrence of this vacancy on promotion of Smt. Keshwani to the post of Senior Clerk. This annexure also contains two footnotes. In the first footnote it has been pointed out that the post of Senior Clerk is a promotional post for the cadre of Head Clerk (Tax). It has been further pointed out in that footnote that, if the demand raised by Respondent No. 5 herein was accepted, his pay scale would be higher than that was fixed for the post of Senior Clerk which is a promotional post for the post of Head Clerk (Tax). The second footnote tried to show justification for fixation of the revised pay scale for the post of Head Clerk (Tax). The second part of the reply at Exh. 23 is almost identically worded as its first part. Therein also an allegation of mala fide for fixation of the pay scale of Respondent 4 herein was refuted. An annexure accompanied the second part of the reply. Therein the cadre of three Inspectors is referred to together with the prescribed qualifications for each Inspector. It has also been shown therein what was the pay scale for each category of Inspectors prior to implementation of what is popularly known as the recommendation of the Sarela Pay Commission. It transpires from the statement that the pre-Sarela Pay Commission grade payable to Inspectors was different for each category. On implementation of the recommendation of the Sarela Pay Commission, the Municipality acceded to the demand raised by the union for fixing the same pay scale for each category of Inspectors. It however transpires from the annexure accompanying the second part of the reply at Exh. 23 that the pay scale fixed for the post of Head Tax Inspector at the time of presentation of the settlement was changed from Rs. 200 - 340 to Rs. 200 - 430. It appears to have been done through oversight as mentioned in the foot note appearing therebelow. The same pay scale is recommended for all these three Inspectors in the settlement. It has been so stated in the second foot note appearing therebelow. Then comes the objections at Exh. 26 raised by the second union to acceptance of the settlement for the purpose of making the award. It contains the usual allegation that the sponsoring union was playing in the hands of the management. In para 12 of the objections at Exh. 26 the post of Head Clerk in the Taxation Section was glorified and it was raised to the status of the post of Head Clerk in the General Administration Section, the parity of the pay scale for the post of the Head Clerk (Tax) was sought with that of Head Clerk (General Administration). In para 16 thereof the post of Head Tax Inspector was linked to that of Head Clerk (General Administration), Internal Auditor, Accountant, and Overseer for the purpose of fixation of the revised pay scales.
11. The grievance voiced against the approach made by the Industrial Tribunal in picking convenient averments from the statement of objection at Exh. 26 and completely ignoring the relevant statements contained in the reply at Exhs. 13 and 23 for the purpose of making the award seems justifiable. It may be mentioned at this stage that the parties to the reference proceedings decided not to lead any evidence in support of their rival pleas. Ordinarily, that would mean that they would rely on the averments made in their relevant statements of objections and the replies on the record of the reference proceedings. In other words, the parties agreed to do away with the proof of the averments contained in their pleadings. The approach made by the Tribunal for relying on the statement of objections at Exh. 26 in support of its conclusion for the purpose of making the award and completely ignoring the relevant averments made in the reply at Exhs. 13 and 23 sounds quite strange. The material placed on record in the case set up by the Municipality in the reference proceedings is completely ignored by the Industrial Tribunal in recording its findings in favour of Respondents Nos. 4 and 5 for the purpose of fixation of their revised pay scales. Even at the cost of repetition it may be reiterated that the parties agreed not to lead any evidence and thereby accepted the averments made in their respective pleadings. The pleading made in the objections at Exh. 26 by the second union glorifying the post of Head Clerk (Tax) would pale into insignificance in view of the averments contained in the reply at Exhs. 13 and 23 read in the light of the accompanying annexure. As mentioned earlier, the status of the post of Head Clerk (Tax) was sought to be raised to that of Head Clerk (General Administration). This status of the post of Head Clerk (Tax) could not have been accepted in view of the clear-cut position shown in the annexure accompanying the reply at Exh. 13 that the said post was between the post of Senior Clerk and that of Junior Clerk. It was clearly mentioned therein that the post of Head Clerk (Tax) was a promotional post for the cadre of Junior Clerks. The annexure to the first part of the reply at Exh. 23 highlighted this position by equating the example of Smt. Keshwani. In that view of the matter, the conclusion reached by the Industrial Tribunal to the effect that the post of Head Clerk (Tax) enjoyed the same status as that of Head Clerk (General Administration) can be said to be nothing but perverse. It has not taken into consideration the material on record appearing in the annexure to the replies at Exhs. 13 and 23.
12. The same would be the case so far as the post of Head Inspector (Tax) is concerned. The Industrial Tribunal has merely relied on the averments contained in para 16 of the statement of objections at Exh. 26 for the purpose of reaching the conclusion that the post of Head Inspector (Tax) could be grouped with those of Accountant, Internal Auditor, and Overseer for the purpose of fixation of their pay scales. The annexure accompanying the replies at Exhs. 13 and 23 showing justification for grouping the post of Head Inspector (Tax) with those of Shop Inspector and Food Inspector are completely ignored. In that view of the matter, the conclusion reached by the Industrial Tribunal raising the status of the post of Head Tax Inspector to those of Accountant, Internal Auditor and Overseer for the purpose of fixation of their pay scales has to be branded as perverse.
13. Shri Vyas for the contesting Respondent has submitted that it would not be open to this Court to reappreciate the evidence on record and to come to different findings from those recorded by the Industrial Tribunal and to substitute its findings by the findings recorded by this Court in exercise of its limited powers under Art. 227 of the Constitution of India. I think this submission has to be stated only to be rejected. The reason therefor is quite simple. If the material on record clearly shows that the findings recorded by the Industrial Tribunal are perverse, it would be open to this Court to set aside those findings in this petition under Art. 227 of the Constitution of India. Thereby this Court does not sit in appeal over the judgment of the Industrial Tribunal in making the award. It is well settled that a finding can be said to be perverse if it is recorded in ignorance of certain material on record or is contrary to the material on record or is such as no prudent man on the basis of the material on record would record it. In the instant case, as pointed out earlier, the Tribunal completely ignored the material on record in the shape of the annexure to the replies at Exhs. 13 and 23 on its record. Again, the findings on the basis of the material on record which a prudent man can record would be only one and that is the post of Head Clerk (Taxation) was certainly not equivalent to that of the Head Clerk (General Administration). The pay scale fixed for the Head Clerk (General Administration) under the settlement could not have been fixed for the post of Head Clerk (Taxation) in view of the fact that it was two stages lower in rank than the former. On the parity of the same reasoning, the post of Head Inspector (Taxation) could not have been equated with those of Accountant, Internal Auditor and Overseer.
14. Shri Vyas for the contesting Respondents has submitted that this point as sought to be canvassed by and on behalf of the petitioner and the sponsoring union before us was not argued or canvassed before the Industrial Tribunal, and we should not therefore consider this point at this stage. It is not possible for us to accept this submission for two reasons. In the first place, the relevant observations in the judgment and award of the Industrial Tribunal are : "Now it is not shown by the Nagarpalika and the sponsoring union as to how the proposed scale for Head Clerk (Taxation) is in accordance with the recommendations of the Commission." This statement appearing somewhere in the middle of para 12 of the award clearly shows that the point was canvassed but it was found not to have been established. The same position emerges somewhere in the middle of the para 13 of the award with respect to the post of Head Inspector (Taxation). It has been mentioned therein : "The Nagarpalika and the sponsoring union have failed to point out from the recommendations of the Commission that the scale of pay for Head Inspector (Taxation) as agreed to through the settlement is the same as recommended by the Commission." It thus becomes clear that the points urged before us to the effect that the material on record was not taken into consideration by the Industrial Tribunal was in fact canvassed before the lower forum. In other words, it transpires that it was pointed out to the Industrial Tribunal on the basis of the material on record that the post of Head Clerk (Tax) could not be equated with that of Head Clerk (General Administration) and the post of Head Inspector (Taxation) with those of Accountant, Internal Auditor and Overseer.
15. Again a specific contention in that regard is taken in para 10 (B/1). A specific grievance has been voiced therein that the Industrial Tribunal did not take into consideration the sub-mission made on behalf of the petitioner Nagarpalika regarding the proper position of the Head Clerk (Taxation) in the administrative set up of the Nagarpalika and be comparable position of the Head Tax Inspector with other Inspectors working in the petitioner-Nagarpalica such as the Food and the Shop Inspectors. Neither the second union nor Respondent No. 5 has controverted this statement occurring in the petition by means of any counter-affidavit. In that view of the matter, it is not possible for us to accept the submission urged before us by Shri Vyas for the contesting Respondents that the point canvassed before his Court for assailing the award of the Industrial Tribunal was not canvassed before the forum in question.
16. Assuming for the sake of argument that the point in question was not canvassed before the Industrial Tribunal, we think that the petitioner can be permitted to canvass it before us for the simple reason that it is a pure question of law going to the root of the matter. When the sponsoring union and the petitioner-Municipality struck the settlement of the industrial dispute, what was required to be done by the Industrial Tribunal was to see whether or not the settlement was just, fair and reasonable at the instance of the second union. This investigation into the justness and reasonableness of the settlement cannot travel beyond the charter of demands on the basis of the administrative set up of the petitioner-Municipality as contained in the rules under the relevant provisions contained in Section 58 of the Bombay Municipal Boroughst Act, 1925. It is not in dispute that the said rules continued till they were replaced by the rules framed under the relevant provisions contained in Section 271 of the Gujarat Municipalities Act, 1963 with effect from April 1, 1984. It becomes clear from the material on record that the administrative set up has kept the post of Head Clerk (General Administration) two stages above the post of Head Clerk (Tax) or the post of Head Clerk in the Taxation Section. The charter of demands submitted by the sponsoring union never included any demand for upgrading the status of the post of Head Clerk (Tax) to the level of the post of Head Clerk (General Administration). It is not the case of the second union before us that its statement of claim at Exh. 9 on the record of the reference proceedings contained any demand. The parity for the fixation of the pay-scale for the post Head Clerk (Taxation), with that of the post of Head Clerk (General Administration), was thus de hors the charter of demands. By claiming such parity what was sought to be claimed was upgradation of the post of Head Clerk (Taxation) to the level of Head Clerk (General Administration). In absence of any such specific demand in the charter of demands giving rise to the industrial dispute being referred to the Industrial Tribunal for adjudication, such claim of parity ought not to have been entertained at all. The claim of parity for the purpose of fixation of the pay scale for the post of Head Clerk (Taxation) with that of Head Clerk (General Administration) without seeking upgrading of the status of the former post with the latter could not have been used for assailing the justness and reasonableness of the settlement in question. We think that the Industrial Tribunal has thus transgressed its limits in examining the justness and reasonableness of the settlement in question on the basis of the claim of parity for fixation of the pay scale for the post of Head Clerk (Taxation ) with that of Head Clerk (General Administration). This point can certainly be said to be going to the root of the matter, and it can certainly be permitted to be raised in this petition under Art. 227 of the Constitution of India even if it was not taken before the Industrial Tribunal.
17. Shri Vyas for the contesting Respondent has then urged that pleadings could not be accepted as proof and it was for the Municipality to have shown to the Industrial Tribunal that the post of Head Clerk (Tax) was not equivalent to that of Head Clerk (General Administration). It has also been urged by Shri Vyas for the contesting Respondent that similarly it was for the Municipality to have shown to the Industrial Tribunal that the post of Head Tax Inspector was equivalent to those of Shop Inspector and Food Inspector do hors its pleadings.
18. We think that the submission urged before us by Shri Vyas for the contesting Respondents can be likened to the attitude of "Heads I win, Tails you lose". The impugned award for the contesting Respondents is sought to be justified though the case set up on behalf of the Respondents Nos. 4 & 5 herein was sought to be established through the statement of objections at Exh. 26 on the record of the reference proceedings. The statement of objections at Exh. 26 could not be said to be anything but pleadings urged before the Industrial Tribunal by and on behalf of the second union. It could not have been taken to be proof in view of the settled principles regarding the law of pleadings. If we accept the submission urged before us by Shri Vyas for the contesting Respondents, the Industrial Tribunal did not err in basing its conclusion for the purpose of making the award on the strength of the relevant averments contained in the statement of objections at Exh. 26. Even at the cost of repetition, it may be reiterated that, when the parties decided to go for trial with respect to the issue whether or not the settlement at Exh. 13 was just and fair, what they impliedly meant was that they accepted the averments made in their respective pleadings and they did away with any proof thereof. In other words, they accepted the pleading as proof. In that view of the matter, Shri Vyas for the contesting Respondents cannot be heard to make grievance that the petitioner-Municipality did not lead evidence before the Industrial Tribunal in support of its pleadings in the case.
19. Even otherwise, the submission urged by Shri Vyas for the contesting Respondents highlights the technicality. The adjudication proceedings before the forum created under the relevant labour legislation are not to be tainted with any strictly legislative or technical approach. Broad principles of rules of evidence and pleadings have to be followed and observed. Even from the yardstick of technicality Shri Vyas for the contesting Respondents could not make any headway in support of the award. As rightly submitted by Shri Shah for the Petitioner, the industrial dispute was raised at the instance of the sponsoring union. The second union volunteered to be impleaded as a party to the reference proceedings. These two unions were in the nature of the plaintiffs before the adjudicating authority. They filed their respective statements of claims at Exhs. 2 and 9 respectively. The petitioner-Nagarpalika filed its reply at Exh. 16. It was in the nature of the defendant. It is a settled principle of law that the plaintiff has to prove his case unless the burden of proof is thrown on the defendant by law. It is very difficult to accept the proposition that the burden to prove its case was thrown on the petitioner-Municipality in the reference proceedings before the Industrial Tribunal. The same analog would be applicable with respect to all objections to the settlement raised by and on behalf of the second union and Respondents Nos. 4 and 5. When they raised objections to the settlement they were in the nature of the plaintiffs. The petitioner-Municipality had to justify the settlement and it was therefore in the nature of the defendant. As rightly pointed out by Shri Shah for the Petitioner, if the settlement had not intervened in it, the contesting Respondents and the sponsoring union would have been required to establish their case in support of their demand before the adjudicating authority in the reference proceedings. If that failed to do so, the reference might have come to be rejected. It thus becomes clear that even the rules of technicality do not operate in favour of the contesting Respondents in the present case.
20. The reliance laced by Shri Vyas for the contesting Respondents on the ruling of the Supreme Court in the of M/s. Bareilly Electricity Supply Co. Ltd. v. The Workmen reported in 1971 - II - LLJ - 407 will not come to his rescue in support of his contention that the parties have to lead evidence in support of their case as leaded by them. In that case the parties had chosen to lead evidence to establish some contested factual position. In that context it has been observed that if a letter or other document so produced to establish some fact which is relevant to the enquiry, the writer must be produced or his affidavit in respect thereof be filed and afforded to the opposite party who challenges this fact. This ruling of the Supreme Court in the case of M/s. Bareilly Electricity Supply Co. Ltd. (supra) is of no avail to the contesting Respondents in the present controversy. As pointed out earlier, both the parties including the contesting Respondents chose to lead any evidence in support of their case in the reference proceedings. It would mean that they accepted the averments made in the pleadings of the parties and did away with any formal proof thereof Shri Vyas for the contesting Respondents cannot now be heard to say that the petitioner-Municipality ought to have proved its case as pleaded in the reference proceedings.
21. Shri Vyas for the contesting Respondents has then urged that the matter should be remanded to the Industrial Tribunal for the purpose of a fresh decision and a fresh award if it is found that it has not taken into consideration the relevant material on record. It may be mentioned at this stage that the impugned award was passed as back as on October 24, 1979. More than 12 years have rolled by. No useful purpose will be served by remanding the matter to the Industrial Tribunal for its fresh decision and award. That might again prove to be time-consuming. Besides, the material on record, as pointed out hereinabove, is quite eloquent for recording the findings and reaching the conclusions. A bare perusal thereof would go to show that the post of Head Clerk (Tax) is two stages inferior to or lower in rank than that of Head Clerk (General Administration). It can clearly be seen therefrom that the post of Head Tax Inspector cannot be grouped with those of Accountant, Internal Auditor or Overseer. It can be grouped only with those of Shop Inspector and Food Inspector.
22. Shri. Zaveri appears to be right in his submission to the effect that the Industrial Tribunal ought to have given due weightage to the settlement instead of lightly rejecting its certain parts. The scheme of the Act amply shows that the aim of the entire machinery involved therein is resolution of any and every industrial dispute with a view to establishing industrial peace. The settlement even at the stage of conciliation proceedings or even during the pendency of the adjudication proceedings should always be made welcome. It cannot be forgotten that the principle of collective bargaining has been enshrined in the scheme of industrial and labour legislation. When any trade union enters into some settlement of the industrial dispute with the employer, the presumption that it has acted in the best interests of its members cannot just be ignored in absence of attribution of any oblique motives behind it. Mere allegation in that regard cannot be sufficient. As rightly said, it is easy to allege but difficult to prove. The attribution of oblique motive in such case even at the stage of pleadings should be based on some concrete materials and not based on vague allegations. When such settlement of the industrial dispute is reached between the sponsoring union, more particularly when it commands the majority, it should be prima facie considered to be in the best interests of the employees of the concerned establishment or industry or even on the public body.
23. In this connection a reference deserves to be made to the ruling in the case of M/s. Tata Engineering and Locomotive Co. Ltd. v. Their Workmen reported in 1981 - II - LLJ - 429. It has been held therein (Para 10-p. 431) :
"If the settlement had been arrived at between the company and the union of the workers by a vast majority of the concerned workers with their eyes open and was also accepted by them in its totality, it must be presumed to be just and fair and not liable to be ignored merely because a small number of workers were not parties to it or refused to accept it, or because the tribunal was of the opinion that the workers deserved marginally higher emoluments than they themselves thought they did. A settlement cannot be weighed in any golden scales and the question whether it is just and fair has to be answered on the basis of principles different from those which come into play when an industrial dispute is under adjudication."
24. Some passages from its earlier ruling in the case of Herbertsons Ltd. (supra) are also quoted. One passage quoted therefrom reads as under (at p. 167 of 1977 Lab IC-162) :
"Besides, the settlement has to be considered in the light of the conditions that were in force at the time of the reference. It will not be correct to judge the settlement merely in the light of the award which was pending appeal before this Court. So far as the parties are concerned there will always be uncertainty with regard to the result of the litigation in a Court proceeding. When, therefore, negotiations take place which have to be encouraged, particularly between labour and employer, in the interest of general peace and well being there is always give and take."
25. We think that these observations flowing from the Supreme Court deserve to be kept in mind by the forums created under the relevant industrial and labour legislations while embarking upon the reference proceedings for adjudication.
26. In the instant case, it transpires from the record that the sponsoring union commanded the majority. It was clearly acknowledged even by the petitioner-Municipality in both the part of its reply at Exh. 23. The fact that only three workmen filed their objections against the settlement would go to show that the majority of the workmen was with the sponsoring union. Out of those three objectors two were office bearers of the second union. This fact would further lend support to our conclusion that the sponsoring union was commanding the confidence of majority of the workmen. The sponsoring union commanding such majority had entered into the settlement of its dispute with the petitioner-Municipality during the pendency of the reference proceedings. The learned Presiding Officer of the Industrial Tribunal, with respect, seems to have ignored and overlooked this aspect of the matter. He appears to have just lightly taken the settlement and has jumped to the conclusion that it was not just and fair qua Respondents Nos. 4 and 5. It was not open to him to do so in view of the aforesaid observations flowing from the ruling of the Supreme Court in the case of Herbertsons Ltd. (supra).
27. These were the only submissions urged before us by the rival sides. We find that the Industrial Tribunal was in error in not accepting the settlement at Exh. 16 on its record in toto. The award to the extent it rejected the settlement with respect to the pay scales for Respondents Nos. 4 and 5 deserves to be quashed and set aside. The rest of the award deserves to be affirmed.
28. Before parting with this judgment, we should like to take note of one fact emerging from the statement made at the Bar on behalf of the petitioner-Municipality and the sponsoring union. It has been stated at the Bar that the General Secretary of the sponsoring union man the post of the Head Tax Inspector at present. It has also been stated at the Bar that he was the General Secretary of the union at the time of the settlement at Exh. 16. If the impugned award is affirmed by us in this petition, the General Secretary of the sponsoring union would be one of the beneficiaries. Instead of deriving that benefit, he has chosen to support the settlement rather than the award. It is heartening to note that his approach and attitude are not tainted with selfish considerations. Again, this takes care of the allegation of mala fide levelled on behalf of the contesting Respondents against the sponsoring union and its office bearers.
29. In the result, this petition is accepted. The award passed by the Industrial Tribunal on October 24, 1979 in Reference (IT) No. 18 of 1978 to the extent it did not accept the pay scale fixed for Respondents Nos. 4 and 5 under the settlement and to the extent it fixed the revised pay scales for these two Respondents is quashed and set aside. Instead, the settlement at Exh. 16 in toto is accepted for the purpose of making the award. Rule is accordingly made absolute however with no order as to costs on the facts and in the circumstances of the case.