Rajasthan High Court - Jodhpur
Hindustan Zinc Limited & Ors vs Union Of India & Ors on 2 June, 2016
Author: Jaishree Thakur
Bench: Jaishree Thakur
<p align="center"><b><font face="verdana" size="2">Case No. CW - 8115 of 2010</font></b></p><br />
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
(1) S.B.Civil Writ Petition No.8115/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(2) S.B.Civil Writ Petition No.10846/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(3) S.B.Civil Writ Petition No. 10847/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(4) S.B.Civil Writ Petition No.10848/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(5) S.B.Civil Writ Petition No.10849/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(6) S.B.Civil Writ Petition No.10880/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(7) S.B.Civil Writ Petition No.10881/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(8) S.B.Civil Writ Petition No.10882/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(9) S.B.Civil Writ Petition No.10883/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(10) S.B.Civil Writ Petition No.10884/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(11) S.B.Civil Writ Petition No.10885/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(12) S.B.Civil Writ Petition No.10886/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(13) S.B.Civil Writ Petition No.10887/2010
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(14) S.B.Civil Writ Petition No.11664/2011
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(15) S.B.Civil Writ Petition No.11710/2011
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(16) S.B.Civil Writ Petition No.11711/2011
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
(17) S.B.Civil Writ Petition No.8007/2012
Hindustan Zinc Limited vs. Union of India
& ors. & ors.
under Article 226 of the Constitution of India.
Date of Order: 02.06.2016
PRESENT
HON'BLE MISS JUSTICE JAISHREE THAKUR
Mr. M. S. Singhvi, Senior Counsel assisted by Mr. Hemant Dutt for the petitioners.
Mr. M. R. Singhvi, Senior Counsel assisted by Mr. Bhavit Sharma, Mr. R.S. Saluja, Advocates for respondents.
Mr. A.K. Rajvanshi, ASG for Union of India.
REPORTABLE
BY THE COURT:
1. In all these writ petitions similar point is involved, therefore, they are being disposed of by this common order. For the sake of convenience, facts of S.B. Civil Writ Petition No.8115/2010 and 8007/2012 are taken.
2. The present writ petitions have been filed to challenge the impugned reference orders dated 26.7.2010 and 4.4.2012 by which the competent authority has forwarded references for adjudication to the Labour Court.
3. The facts leading to the filing of the present writ petition are that the Company-Hindustan Zinc Limited a Government Company within the meaning of Section 617 of the Companies Act, 1957 with Government of India was holding 76% of share capital. In the month of April, 2002, dis-investment of the petitioner-Company is undertaken by the Government of India and 26% of its holding in the petitioner-Company was sold. That due to un-economic and un-viable earning operations at Maton Mines, the petitioner-Company decided to cut the cost by introducing a special scheme for voluntary retirement of its employees. Out of 202 workmen working in the mines, 179 workmen opted for voluntary retirement under the voluntary retirement scheme and they were granted all benefits accordingly, but 23 workmen did not accept the said scheme and they were retrenched by invoking the provisions contained in Industrial Disputes Act, 1947. An industrial dispute came to be raised and during the course of conciliation proceedings, an understanding was reached between employer and Shanti Lal Jain workman -respondent no.4 in the present writ petition. On asking of the Union, the petitioner-Company agreed to extend the scheme of voluntary scheme to respondent no. 4 and others, who had been retrenched. The respondent no. 4 and 20 other retrenched employees moved an application for voluntary retirement for receiving benefits under the voluntary retirement scheme, which was subsequently allowed. One of the terms of the settlement was that all claims stood settled and agreed upon and thereafter no dispute would be pending between the employer and the retrenched workmen. By the said settlement the workman could not claim employment in any other mine as well. Two employees namely, Radhey Shyam Jat and Rajesh Ghawri did not accept the voluntary retirement under the conciliation proceedings. A failure report was sent in this matter and ultimately, reference was made to the appropriate Government for adjudication before the Industrial Tribunal, where out of court understanding was arrived at and the two workmen were given fresh appointment in another establishment.
4. After having accepted the voluntary retirement scheme, respondent no. 4 raised a dispute before respondent no. 2 by complaint dated 5.4.2009 claiming the benefit under Section 25H of the Industrial Disputes Act, 1947. The petitioner- Company submitted a detailed reply stating therein that there was no question of retrenchment and no dispute exists between the parties since the respondent no.4 workman had already accepted the voluntary retirement scheme. A failure report came to be issued and on the basis of the same a reference was made by respondent no. 3 :
whether the action of the Management of the Hindustan Zinc Limited in terminating the services of Shanti Lal Jain with effect from 27.3.2002 and thereafter not re-instating/re-employing him is legal and justified? To what relief, the workman is entitled and from which date?
5. In S.B .Civil Writ Petition No. 8007/2012 reference order dated 4.4.2012 with regard to 184 workmen has been challenged. These include 179 workmen, who had initially accepted voluntary retirement scheme and five workmen are those who were amongst 21 workman who entered into a settlement and accepted the voluntary retirement scheme before the conciliation officer. The Union also came to file a complaint on behalf of the workman before the conciliation officer and a reference came to be made in the following terms:-
''Whether the action of the Management of the Hindustan Zinc Limited Udaipur in Retrenching 184 workmen ( List enclosed ) w.e.f 25.8.2001 by giving them Special Voluntary Retirement Scheme-II on closure of Maton Rock Phospate Mines, Udaipur and in not giving preference to these retrenched 184 workmen (list enclosed) at the time of new appointments made by the management on re-starting the mining activities in the same mine, is legal and justified? What relief the workmen are entitled to ?
Aggrieved against the reference orders dated 26.7.2010 and 4.4.2012 these present writ petitions have been filed.
6. Mr. M.S. Singhvi, learned Senior Counsel appearing on behalf of the petitioner inter alia contends that after having accepted the voluntary retirement scheme as offered to the workmen, no relationship exists between the respondents and the petitioner-Company. In this regard it is argued that under Section 2(s) of the Industrial Disputes Act, 1947 (for short 'the Act of 1947'), "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical workmen and for the purpose of the proceedings under the Act of 1947, includes any person who has been dismissed, discharged or retrenched in connection with any dispute or whose dismissal, discharge or retrenchment has led to that dispute and in the present case, since the workmen were neither dismissed, discharged, or retrenched they would not be workman . It is further submitted that the retrenchment as defined under section 2 (oo) of the Act of 1947 does not include voluntary retirement of the workman. It is argued that the reference made should be set aside on the ground that after having accepted and agreed to take voluntary retirement, there was no occasion for raising dispute after period of more than 6-1/2 years . A duty was cast upon the Government to have examined the question of delay in making the complaint which has not been done in the present case. Further more, there has been total non-application of mind by Central Government while making the reference, as is evident from the reference itself. After having accepted the benefit under the voluntary retirement scheme, it would not be a case of termination/retrenchment and consequently thereto, there is no question of reinstating an employee under the provisions of Section 25H of the Act of 1947. The reference order has been assailed on the ground that as per the terms of the settlement, there was a clause which stipulated that no dispute could be raised thereafter and after having received the settlement amount, all the disputes stood settled.
7. Per contra, Mr. M.R. Singhvi, learned Senior Counsel with Mr. Bhavit Sharma and Mr. R.S. Saluja advocates have argued that this Court does not have jurisdiction to entertain the writ petition challenging a reference order under Section 10 of the Industrial Disputes Act 1947. It is argued that the voluntary retirement scheme was forced upon the workmen and was brought into effect only to avoid the process of closure of the mines. It is argued that there is no delay in filing of the complaint since the cause of action arose after the respondents were made aware that two persons by the name of Radhey Shyam Jat and Rajesh Ghawri workmen , through retrenched along with others, had been taken back in service and that an application had been moved to reopen the mines. It is argued that the petitioner-Company ought to allow the proceedings to continue before the Labour Court. It is argued that Section 19 the Act of 1947 itself permits opening of any settlement if the same is not in the benefit of the workmen.
8. I have heard learned counsel for the parties and have perused the record of the case.
9. Mr. M.R. Singhvi, learned Senior Counsel appearing on behalf of the respondent-workmen urges that against a reference order, when the matter still has to be adjudicated by the labour court, the High Court should not interfere. It is argued that the law is well settled in this regard in the case of D.P. Maheshwari v. Delhi Administration & others, AIR 1984 SC 153, wherein Supreme Court came to hold that jurisdiction of High Court under Article 226 of the Constitution of India and jurisdiction of the Supreme Court under Article 136 should not be invoked by those who can well afford to wait and Articles 226 and 136 are not meant to be used to break the resistance of the workmen in this fashion. In the above case, the Supreme Court held as under:-
It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Art. 226 of the Constitution and to this Court under Art. 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art. 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Art. 226 of the Constitution nor the jurisdiction of this Court under Art. 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Art. 226 and Art. 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. It is also worth while remembering that the nature of the jurisdiction under Art. 226 is supervisory and not appellate while that under Art. 136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues.
10. It is urged that the judgment rendered in D.P. Maheshari (supra) is binding to date and judgment rendered in the case of National Engineering Industries Ltd. v. State of Rajasthan & ors., (2000) 1 SCC 371, is per incurium as the same does not take note of the judgment rendered in D.P. Maheshwari (supra) . In the case of National Engineering Industries Ltd., (supra) the Supreme Court came to hold that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act of 1947. In the case referred to above, Supreme Court came to hold that the High Court has jurisdiction to entertain a writ petition if there is no industrial dispute in existence or apprehended. In such a case, appropriate Government may lack power to make any reference. The Supreme Court in the above case held as under:-
24. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the industrial tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended appropriate government lacks power make any reference. A settlement of dispute between the parties themselves is to be preferred, where it could be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace then an award. Settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements it could be the subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the Conciliation Officer must be fair and reasonable. A settlement which is sought to be impugned has to be scanned and scrutinized. Sub-sections (1) and (3) of section 18 divide settlements into two categories, namely, (1) those arrived at outside the conciliation proceedings and (2) those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all the parties to the industrial disputes, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter, A settlement arrived at in the course of conciliation proceedings with a recognized majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. The recognized union having the majority of members is expected to protect the legitimate interest of the labour and enter into a settlement in the best interest of the labour. This is with the object to uphold the sanctity of settlement reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. When a settlement is arrived at during the conciliation proceedings it is binding on the members of the workers' union as laid down by section 18(3) (d) of the Act . It would ipso facto bind all the existing workmen who are all parties to the industrial dispute and who may not be members of Unions that are signatories to such settlement under section 12(3) of the Act. The Act is based on the principle of collective bargaining for resolving Industrial disputes and for maintaining industrial peace. "This principle of industrial democracy is the bedrock of the Act", as pointed out in the case of P. Virudhanchalam & Ors. v. Management of Lotus Mills & Anr., [1998] 1 SCC 650. In all these negotiations based on collective bargaining the individual workman necessarily recedes to the background. Settlements will encompass all the disputes existing at the time of the settlement except those specifically left out.
11. In the case of D.P. Maheshwari (Supra), the controversy before the Supreme Court was with regard to deciding of a preliminary issue by the Industrial Tribunal. In the case of D.P. Maheshwari (supra), a preliminary issue had been raised as to whether D.P. Maheshwari was a workman or not and after leading the evidence, the Labour Court came to the conclusion that he was a workman as defined under Section 2(s) of the Act of 1947. The decision was challenged by the Management by invoking extra-ordinary powers under Article 226 of the Constitution in which the High Court quashed the order of the Labour Court and the reference made by the Government. The Division Bench too affirmed the decision of the Single Bench and, thereafter, a challenge was made by the workman who obtained Special Leave to Appeal. It was in this background that the Supreme Court came to opine that the workman should not be dragged unnecessary through one court to the other. In the present case, the issue before this Court is the total non-application of mind of appropriate Government while referring the dispute for adjudication under Section 10 of the Act of 1947 especially when there is a voluntary retirement scheme in effect , which scheme in fact restricts the workmen from raising any industrial dispute.
12. The issues involved in the case of D.P. Maheshwari (Supra)and in the present case are not on the same footing and, therefore, a reference made under section 10 of the Industrial Disputes Act 1947 can be challenged as the High court would be competent to look into the matter as to whether industrial dispute exists or not. Moreover this becomes essential in view of the fact that once a reference has been made, the Labour Court or the Industrial Tribunal cannot look beyond the reference made and would not be able to go into question whether there was voluntary retirement, whether there was termination or even into the question of voluntary retirement scheme. In Mahendra L. Jain & ors. v. Indore Development Authority & ors., (2005) 1 SCC 639, the Supreme Court held that the Labour Court cannot enlarge the scope of reference nor can deviate therefrom. Similarly in a judgment reported as Mukand Ltd. v. Mukand Staff & Officers' Association, (2004) 10 SCC 460 it has been held that the Industrial Tribunal being a creature of reference could not adjudicate matters not within the purview of the dispute actually referred to it by the order of reference.
13. It is also relevant to note that even prior to D.P Maheswaris case (Supra)in the matter referred to as Bombay Union Of Journalists & Ors. Vs. The State Of Bombay & Anr, Reported As AIR 1964 SC 1617 the Supreme court held when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. If the claim made is patently frivolous or is clearly belated or if the impact of the claim on the general relations between the employers and the employees in the region is likely to be adverse the Government may refuse to make a reference.
14. The question regarding the jurisdiction of the High Court to entertain this writ petition on the ground that the matter had yet to be adjudicated by the Labour Court was argued at length. The learned Single Bench by a detailed order dated 23. 8. 2012, while discussing the cases listed in D.P. Maheshwari (supra) and National Engineering Industries Ltd., (supra) came to the conclusion that the High Court can entertain the matter as to whether the reference itself was justified. This matter was taken up before the Division Bench and the Division Bench affirmed the order passed, which order was never challenged by the respondent-workmen, therefore, in the opinion of this Court, the question of jurisdiction to entertain the writ petition stands settled. Thus clothed with the above , the court will deal with the validity of the impugned order of reference and other issues raised.
15. Mr. M.S. Singhvi learned Senior Counsel appearing on behalf of the petitioner argues that once a voluntary retirement scheme had been accepted and acted upon, there is no dispute pending between the parties and in the present case, the voluntary retirement scheme came into effect on 27.3.2002 and the reference had been filed after more than six years. In this regard reliance has been placed on (1) Nedungadi Bank vs. K.P. Madhavan Kutty, 2000(2) SCC 455, (2) Dharappa vs. Vijapur Coopertive Milk, 2007(9) SCC 109 and (3) U.P.S.R.T.C. vs. Ram Singh, 2008(17) 727.
16. On the other hand, Mr. M.R. Singhvi, learned Senior Counsel appearing on behalf of the respondents workmen urged that there is no delay in the reference since cause of action arose when the petitioner-Company moved an application to re-open the Maton Mines. It is also argued that the law does not prescribe any time limit for the appropriate government to exercise its powers under Section 10 of the Act of 1957. Reliance has been placed upon Haryana Land Reclamation and Development Corporation Ltd., vs. Nirmal Kumar, AIR 2008 SCW 306, wherein it was held that as far as delay in seeking reference is concerned, there is no universal formula applied as far as limitation is concerned.
17. Admittedly, voluntary retirement scheme was accepted by 179 workers of Manon Mines on 7.8.2001. After having accepted the said scheme, respondents kept quiet for almost 6-1/2 years and did not raise any dispute thereafter. The dispute came to be raised on 5.4.2009 when an application under Section 2(a) read with Section 25H of the Act of 1947 was moved to the conciliation officer with a prayer that he be taken back in service and the services be counted as continuous from the date their services were terminated. The only ground in the said claim application was re-instatement by invoking the provision of Section 25H of the Act of 1947. No doubt it is true that there is no period of limitation prescribed to raise an industrial dispute but when the dispute does not exist the reference should be rejected. It is for the workmen to show that the dispute has been raised within a reasonable time frame, which is wholly lacking in the present case. It has to be kept in mind that due to economic and un-viable conditions, Maton Mines were not functioning leading to voluntary retirement scheme coming into effect and being offered to the workmen. After having accepted the same, there was no occasion for moving an application claiming compliance of Section 25H of the Act of 1947 with the prayer to be reinstated from the date of termination/retrenchment. The judgment relied upon by the learned counsel appearing on behalf of the respondents is distinguishable and does not have bearing on the facts of the present case. A stale dispute cannot be considered as an industrial dispute. Supreme Court in the case of Nedungadi Bank Limited v. K.P. Madhavankutty and Ors. , 2000 (1) SLR 636, has held:
"Law does not prescribe any time limit for the appropriate government to exercise its powers under section 10 of the Act: It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us L.C.A NO. 3/2007 to be -no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of order dismissing the respondent from service. At the time reference, was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale `could not be the subject matter of reference under section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under section 10 of the Act in the circum- stances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and incompetent."
Resultantly, it is held that the settlement arrived at had become final and there is a considerable delay in raising dispute before the conciliation officer.
18. Voluntary retirement scheme came into effect with the union and the management pertaining to the workman of Maton Mines. It is to be noted that the voluntary retirement scheme was negotiated not by the workmen individually but it was the Union that negotiated the terms and conditions of the scheme. The scheme was offered to 202 workmen in the year 2002 and 179 employees opted for the same without any compulsion. 23 workman were retrenched which order came to be challenged and before the conciliation officer, on the intervention of the Union , the matter was settled and 21 workman accepted the VRS( other than 2) . It is interesting to note that after having accepted the scheme in its entirety and having availed of the benefit of the same, a dispute is sought to be raised in which there is no mention that the terms and conditions of the scheme are unfair or unjust. Neither has the scheme been challenged at any point of time immediately after that. The Supreme Court while deciding the matter in a similar situation in the case of Vice Chairman and Managing Director, A.P.SIDC. Ltd. v. R. Varaprasad & ors. , (2003) 11 SCC 572 came to hold that when an employee has opted for voluntary retirement scheme on their own without any compulsion knowing fully well the terms and conditions thereof, it is not open to them to claim contrary to the terms accepted. It was held in the above case as under:-
12. This being the position both learned single Judge and the Division Bench of the High Court were not right in taking a contrary view that the benefits available under the Scheme and terminal benefits should be reckoned and calculated as on the date of actual relieving the employees notwithstanding the cut off date mentioned by the Corporation and accepted by the employees. An employee even after accepting his application could not be relieved unless entire amount to which he was entitled under the Scheme was paid. Such payment depended on making funds available by the State Government. All employees who accepted VRS could be relieved at a time or batch by batch depending on availability of funds. Further funds may be made available early or late. If the argument of the respondents that relieving date should be taken as effective date for calculating terminal benefits and financial package under VRS, the dates may be fluctuating depending on availability of funds. Hence it is not possible to accept this argument. When the employees have opted for VRS on their own without any compulsion knowing fully well about the Scheme, guidelines and circulars governing the same, it is not open to them to make any claim contrary to the terms accepted. It is matter of contract between the Corporation and the employees. It is not for the courts to re-write the terms of the contract, which were clear to the contracting parties, as indicated in the guidelines and circulars governing them under which Voluntary Retirement Schemes floated.
19. Similarly, in the case of ITI Limited vs. ITI EX/VR Employees/Officers Welfare Association and others, (2010) 12 SCC 347, the Supreme Court came to hold that if the employee has got the benefit under the voluntary retirement scheme, rightly or wrongly, it cannot be reopened and an employee cannot claim any higher amount on the basis of any subsequent revision in the wages.
20. In the instant case, voluntary retirement scheme attained finality and the terms and conditions therein are binding upon parties. One of the clauses incorporated is all the disputes/claims including claim for reinstatement shall be deemed to have been settled in full and final by virtue of this settlement and he shall not raise any dispute in this regard or otherwise before any court of law/authority/forum in future. The respondents themselves agreed to the terms and conditions as specified above and having agreed, they are now estopped from re-agitating the same. The settlement arrived at between the workmen and the petitioner-Company has become final.
21. Mr. M.R. Singhvi, learned Senior Counsel appearing on behalf of the respondents submits that Section 19 of the Act of 1947 itself permits the reopening of the settlement. Section 19 of the Act of 1947 reads as under:-
19. Period of operation of settlements and awards.- (1) A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute.
(2) Such settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of six months 2from the date on which the memorandum of settlement is signed by the parties to the dispute, and shall continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement (3) xxx xxx.
A perusal of the above section shows that a settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and in case no date is agreed upon, the date on which the memorandum of the settlement is signed by the parties to the dispute, will be the date counted. Section 19(2) stipulates that settlement shall be binding for such period as is agreed upon by the parties and if there is no such period, it will be binding for a period of six months from the date the memorandum of settlement was signed and it shall continue to be binding upon the parties after expiry of the period and also the settlement shall continue to be binding on the parties until the expiry of two months from the date on which a notice is served by one of the parties of its intention to terminate the settlement. In the case in hand, the settlement between the parties came into effect before the conciliation officer on 2.9.2002. In the Voluntary Retirement Scheme, the date of relieving from the service of the Company was with effect from 17.3.2002. In other words, the settlement became binding as on that day itself. Moreover there is no notice issued by the Union or the workman to terminate the scheme or settlement. Relying on Section 19 of the Act of 1947 , Mr. M.R. Singhvi learned Senior Counsels argument that the settlement can be reopened at any point of time is, therefore, clearly not sustainable. In any case if the said argument is to be accepted no settlement arrived at would attain any finality and on the capricious whim of a workman the disputes would be raised.
22. The contention that after voluntary retirement having been effected, there would be no relationship between the respondents and the petitioner-Company, does have merit. The definition of retrenchment as defined under Section 2(oo) of the Act of 1947 clearly defines retrenchment, to mean termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but would not include voluntary retirement. The respondents having accepted the voluntary retirement scheme, could not claim it to be retrenchment as defined under Section 2(oo) of the Act of 1947 or claim the benefit of retrenchment compensation or compliance of Section 25H of the Act of 1947 by seeking reinstatement. Even otherwise, the respondents do not fall under the definition of workmen as defined under Section 2(s) of the Act of 1947, as they are no longer in service and are such persons who have neither been dismissed, discharged or retrenched on account of any dispute which had led to their dismissal, discharge or retrenchment. Unless there is a contract of employment between the employer and claimant or in other words, there is a relationship of employer and employee between them, the definition of workman will not come into play. Once the respondents are held not to be workmen having not been dismissed, discharged or retrenched, NOT in employment of the petitioner, they would not be entitled to raise a dispute which can be raised between the workmen and the employer as specified under Section 2(k) of the Act of 1947. Section 2(k) of the Act of 1947 defines industrial dispute to mean any dispute or difference between employer and the workmen or between workman to workman itself connected with the employment or non-employment. If the respondents are not workmen, as they do not fall within the definition of Section 2(s) of the Act of 1947, they cannot raise any dispute for adjudication to the conciliation officer under the provisions of the Act of 1947. Therefore, the claim petition itself ought not to have been entertained by the conciliation officer.
23. The conciliation officer forwarded a failure report which is available on the record. The duties of the conciliation officer are defined under Section 12 (4)of the Act of 1947 wherein it is specifically laid down that if no such settlement is arrived at between the parties a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances and the reasons on account of which a settlement could not be arrived at, is to be forwarded to the State Government. The State Government thereafter is to consider the report and on its satisfaction, may make a reference. Mr. M.R. Singhvi, learned Senior Counsel however submits that the failure report is as per the provisions of the Act of 1947 since it had forwarded the entire proceeding to the conciliation officer, in Annex.A-5 while noting that the workman was agreeable for voluntary arbitration but the management did not.
24. In the instant case, the failure report sent by the conciliation officer is totally laconic and does not comply with the stipulation and provisions of Section 12(4) of the Act of 1947. An application was moved under Section 2A of the Act of 1947. Once a detailed reply had been filed before the conciliation officer that there was no retrenchment, dismissal or termination of the services of the workman and retirement was on account of the voluntary retirement scheme opted by him in conciliation proceedings, the conciliation officer ought to have stayed his hands. The conciliation report does not take note of the detailed reply that was filed by the petitioner-Company nor does it enlist as to what steps were taken by him to ascertain the nature of the dispute. The very reference order has gone on the presumption there was termination of the services of the workman without going into the details or noting that there was no termination/retrenchment involved and the respondents had availed benefits of voluntary Retirement Scheme. Even the reference order dated 4.4.2012 is self contradictory. 179 accepted the voluntary retirement offered on 25.8.2001 and not 184. Obviously without appreciating the VRS and the conditions therein the appropriate Government has formulated the question ''Whether the action of the Management of the Hindustan Zinc Limited Udaipur in Retrenching 184 workmen ( List enclosed ) w.e.f 25.8.2001 by giving them Special Voluntary Retirement Scheme-II on closure of Maton Rock Phospate Mines, Udaipur and in not giving preference to these retrenched 184 workmen (list enclosed) at the time of new appointments made by the management on re-starting the mining activities in the same mine, is legal and justified? What relief the workmen are entitled to ? Voluntary Retirement and retrenchment are mutually opposed to each other. That is why, it became all the more important for the conciliation officer to have complied with Section 12(4) of the Act of 1947 in giving full details of the statement of facts pertaining to the case. Had the failure report been detailed, the appropriate government would have noted the fact that there was no termination / retrenchment of services.
25. Mr. M.R. Singhvi Sr. Counsel would argue that the appropriate Government has no option but to refer a dispute to the Labour Court for adjudication. It is urged that power conferred by Section 10(1) of the Act of 1947 on the appropriate Government to refer the dispute could be exercised not only where an industrial dispute exists but when it is apprehended also and also submits the role of the appropriate Government is limited to doing of an administrative act. Reliance in this regard has been placed on a judgment rendered in Shambhu Nath Goyal v. Bank of Baroda, AIR 1978 SC 1088. A further reliance has been placed on a judgment rendered in Ariane Orgachem Private Limited vs. Wyeth Employees Union & ors., (2015) 7 SCC 561, wherein the Supreme Court came to hold that where there are allegations of fraud and coercion for getting the signature on blank papers in the execution of a voluntary retirement scheme, if a reference is made, there was no illegality in the same. Therefore, based on these two judgments, it is argued that the High Court should not interfere.
26. On the other hand, Mr. M.S. Singhvi, learned Senior Counsel, appearing on behalf of the petitioner, while relying on judgment reported in Steel Authority of India Ltd. vs. Union of India, 2006(12) SCC 233, Rastriya Chemicals & Fertilizers Ltd. & anr. v. General Employee's Association & ors., 2007(5) SCC 273, has argued that for the purpose of exercising jurisdiction under Section 10 of the Act of 1947, the appropriate Government is required to apply its mind even though the order may be purely an administrative one. It is submitted the appropriate Government has to satisfy itself as to whether a dispute exists or not between the parties and such application of mind has to be made on the basis of the material placed before it. It is now settled that the High Courts will not straight away direct the appropriate Government to refer the dispute. In Rastriya Chemicals & Fertilizers Ltd. & anr. v. General Employee's Association & ors., 2007(5) SCC 273 it has been held as :
It is for the appropriate Government to apply its mind to relevant factors and satisfy itself as to the existence of a dispute before deciding to refer the dispute. We may refer to the following observations of this Court in Steel Authority of India Ltd. Vs. Union of India ((2006) 12 SCC 233).
"For the purpose of exercising jurisdiction under Section 10 of the 1970 Act, the appropriate Government is required to apply its mind. Its order may be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be. ( emphasis supplied).
27. Admittedly, in the instant case, there is no allegation in the application moved under Section 2(a) of the Act of 1947 that voluntary retirement scheme was obtained fraudulently or under coercion. There is a mention in some writs the settlement arrived at was under duress but what has to be kept in mind is that after the voluntary retirement scheme came into effect and was accepted by the parties, the same has not been challenged to date nor was the same sought to be set aside by invoking Section 19 of the Act of 1947. Be that as it may, the appropriate government did not go through the nature of the dispute which was limited to seeking benefit of section 25 H of the Act of 1947. Had the appropriate government applied its mind and not acted mechanically it would have noted that there was no termination/ retrenchment as mentioned in the reference orders.
28. An argument has been raised by Mr. M.S. Singhvi learned Senior Counsel that the Union preferred a writ petition on behalf of 184 persons however there is no such authority on the record . Admittedly a dispute has been sought to be raised on behalf of 189 workmen in a representative capacity but nothing is available on record to overturn this argument. The voluntary retirement scheme has been entered into individually with the workman and benefits given thereunder. The authority of all should be made available which is lacking.
29. Therefore, in view of the above discussion and after having noted the case law relied upon by the learned counsel appearing on behalf of both the parties, I am of the opinion that the reference orders dated 26.7.2010 and 4.4.2012 are in itself illegal in so far as there was no retrenchment or termination of the workmen who had opted for the benefits under the voluntary retirement scheme. The failure report itself is totally laconic without complying with the provisions of Section 12(4) of the Act of 1947. While forwarding the failure report, it is not sufficient to annex the proceedings and the statements with the report. The report has to mention the statement of facts, steps taken during the proceedings to verify the dispute and the reasons for the failure which are wholly lacking in the instant case. Moreover, having accepted the voluntary retirement scheme, the respondents ceased to be workmen as defined under the Industrial Disputes Act, 1947 and thus were not persons who would be competent to invoke the provisions of the Industrial Disputes Act, 1947. Any term of the contract/employment came to an end the minute the voluntary retirement scheme is entered into. Without revoking or even issuing a notice to the effect that the voluntary retirement scheme had been entered into on the basis of fraud, the terms and conditions of the same are binding upon the workmen.
30. Therefore, the above noted writ petitions are allowed and the terms of the references are hereby quashed and set aside. No order as to costs.
(JAISHREE THAKUR), J.
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