Andhra Pradesh High Court - Amravati
Andhra Kesari Itc Ltd., Guntur Dist. ... vs The Govt. Of A.P., Labour Dept., 2 Others on 22 April, 2024
APHC010479022007
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
MONDAY ,THE TWENTY SECOND DAY OF APRIL
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
WRIT PETITION NO: 18946/2007
Between:
Andhra Kesari Itc Ltd., Guntur Dist. & Another ...PETITIONER(S)
and Others
AND
The Govt Of A P Labour Dept 2 Others and ...RESPONDENT(S)
Others
Counsel for the Petitioner(S):
1. K UDAYA SRI
Counsel for the Respondent(S):
1. .
2. GP FOR LABOUR
3. G V S GANESH
4. G V S GANESH
The Court made the following:
2
Dr. VRKS, J
W.P.No.18946 of 2007
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
WRIT PETITION No.18946 of 2007
ORDER:
1. Espousing the cause of an ambulance driver (seasonal driver), Andhra Kesari ITC Ltd., ILTD Division Workers Union (Regd.No.1920/1996) filed this writ petition under article 226 of the Constitution of India with the following prayer: -
"This Hon'ble Court may be pleased to issue an order, direction or writ particularly one in the nature of writ of certiorari or any other appropriate writ calling for the records from Dy. Commissioner of Labour, Guntur Zone, Guntur and quash the same and consequently direct the respondents to refer the dispute to the Industrial Tribunal or Labour Court for adjudication by setting aside the proceedings Rc.No.1600/07 dated 18.07.2007 and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice."
Representing the employer/ respondent Nos.2 and 3, a counter affidavit was also filed.
2. Sri A.Padmanaba Rao, learned counsel representing Smt.K.Udaya Sri, learned counsel for writ petitioners and Sri Tagore Yadav, learned counsel representing Sri G.V.S.Ganesh, learned counsel for respondents submitted arguments.
3Dr. VRKS, J W.P.No.18946 of 2007
3. The following facts are required to be noticed: -
The 1st petitioner was a recognized union. Between the respondents/ management and this recognized union, a settlement dated 03.04.2004 was entered into in terms of section 12(3) read with section 18(3) of the Industrial Disputes Act, 1947. By virtue of this settlement, certain changes took place. As per clause 35(e) of the memorandum of settlement, the ambulance van in both the factories would be operated by non-seasonal and seasonal class-B workmen without any increase in non-seasonal and seasonal numbers and that there will be a separate seasonal blue print for two seasonal class-B ambulance drivers and in the event of non-seasonal class-B ambulance driver position falling vacant due to separation, such vacancy shall be filled by confirming the senior most class-B ambulance driver.
4. In ambulance section, there are three posts of drivers. One post is for non-seasonal driver. Two posts are for seasonal workmen. While that being so, Sri P.Anthony (non-seasonal driver) retired on 31.12.2006. The 2nd writ petitioner/ Sri M.Raja Rao (seasonal driver) was stated to be eligible to be appointed as non-seasonal ambulance driver at Chirala Branch. Instead of giving the post to him, the same was given to Sri P.Anthony. The 2nd writ petitioner was put in Fork Lift driver section from January, 2007. Had he been continued in ambulance section as 4 Dr. VRKS, J W.P.No.18946 of 2007 ambulance driver, he would have got the post of non-seasonal driver. The action of the management impacted the 2nd writ petitioner/ M.Raja Rao and he lost his opportunity to secure the post of non-seasonal driver and suffered financial loss. It was in those circumstances, espousing his cause, the 1st writ petitioner/ union filed an application of claim before the conciliation officer in terms of section 10 of the Industrial Disputes Act, 1947. The Deputy commissioner of labour summoned and convened a joint meeting between the workers union and the management. Finally in R.C.No:D/1600/07 dated 18.07.2007, the following order was passed: -
"After careful examination of the matter at length, it is clearly established that the Clause 35(e) of the Settlement dated 3rd April, 2004 has been amended through a separate settlement / memorandum of understanding dated 29th December, 2006 entered into by the current recognized union and the management mutually. As such, the amended Clause 35(e) has come into force from 29th December, 2006 and the erstwhile Clause 35(e) contained in the settlement dated: 3d April, 2004 became automatically invalid. Therefore, your contention of non- implementation of Clause 35(e) of the Settlement dated:
3rd April, 2004 cannot be sustained. Consequently, no valid industrial dispute can be said to exist and therefore your 5 Dr. VRKS, J W.P.No.18946 of 2007 representation does not merit consideration and it is disposed off accordingly."
It is the above order, that is challenged in this writ petition.
5. Learned counsel for writ petitioners submits that if conciliation was not successful, the conciliation officer ought to have referred the matter to the Government which could have made a reference of the dispute to the appropriate tribunal or court and instead, by exceeding his jurisdiction, he passed the impugned order and therefore the same shall be set aside and this court exercising writ jurisdiction should direct 1st respondent/ State Government to refer the dispute to the industrial tribunal or labour court for adjudication.
6. As against it, learned counsel for respondents submit that the 1st writ petitioner is now no more recognized union as its term expired and in accordance with law elections were held on 12.08.2006 and in the said elections, the AP federation of ILTD company workers union emerged with majority votes and a new union was recognized from 14.09.2006. Therefore the 1st writ petitioner is no more entitled to prosecute the cases. Learned counsel further argued that an individual dispute is sought to be projected as an industrial dispute and that cannot be countenanced. It is further submitted that the 2nd writ petitioner/ Sri M.Raja Rao retired from service way back in the year 2012 and therefore the writ petition has become infructuous. The 6 Dr. VRKS, J W.P.No.18946 of 2007 forceful submission of the learned counsel for respondents is that after the emergence of the new recognized union, a separate settlement/ memorandum of understanding dated 29.12.2006 was arrived at and clause 35 (e) of the earlier settlement dated 03.04.2004 was amended. The said modification reads as below.
Terms of Understanding: -
1.It is agreed to modify Clause 35 (e) of current Settlement dated 3rd April 2004 as follows:
Modification to Clause 35(e) of Settlement dated 3rd April, 2004:
In partial modification to the above Clause, it is agreed that Ambulance Van in both the factories will be operated by one Non-Seasonal Forklift Driver and two Seasonal Forklift Drivers without any increase in the establishment of Non- Seasonal and Seasonal Class 'B' numbers (i.e., Forklift Drivers). Consequently, it would not be necessary to maintain a separate seasonal blueprint for 2 Seasonal Ambulance Drivers and the seperate blueprint hitherto being maintained shall stand withdrawn. In the event of a Non-Seasonal Ambulance Driver (i.e., Forklift Driver) position falling vacant due to separation, such vacancy shall be filled by confirming the senior most Seasonal Class 'B' Forklift Driver. When Ambulance Drivers (i.e., the 7 Dr. VRKS, J W.P.No.18946 of 2007 designated Forklift Driver) avail leave, substitution during the leave period shall be done by the existing Non- Seasonal/Seasonal Forklift Driver as per current practice.
2. It is agreed that in case of dispute on the above change, the Union is liable for all consequences including legal proceedings and abide by the decision of appropriate authority for restoration of 'Statusquo Ante'.
3. The union and workmen agree that neither the Union nor workmen individually / collectively raise any demand/Issue for modification/ change/ amendment of any other clause of current settlement dated 03.04.2004. The Union and workmen, further assure their full cooperation for complete implementation of all clauses of current settlement dated 3rd April, 2004 in letter and spirit.
7. This binds everyone in the industry. That Sri M.Raja Rao never questioned the correctness of it before the Deputy Commissioner of Labour and never questioned the correctness of the settlement and other unions also never questioned the correctness of the above amended settlements. The said amendment has been continued till now and it did not give rise to any other disputes. The sanctity of such settlement arrived at between the management and the recognized union shall not be interfered with as the said settlement brought peace which has been prevailing till now. Reference in this regard shall be made to 8 Dr. VRKS, J W.P.No.18946 of 2007 the ruling of the Hon'ble Supreme Court of India in Barauni Refinery Pragatisheel Shramik Parishad V. Indian Oil Corporation1. Their Lordships held that "Settlements are divided into two categories, namely, (i) those arrived at outside the conciliation proceedings [Section 18(i)] and (ii) those arrived at in the course of conciliation proceedings [Section 18(3)]. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement. But a settlement arrived at in the course of conciliation proceedings with a recognised majority union has extended application as it will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent it departs from the ordinary law of contract. The object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement.
There is an underlying assumption that a settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made binding not only on the workmen belonging to the union signing the settlement but also on the others. That is why a settlement arrived at in the course of conciliation 1 (1991) 1 SCC 4 9 Dr. VRKS, J W.P.No.18946 of 2007 proceedings is put on par with an award made by an adjudicatory authority."
8. The prayer made here in the writ petition is not in accordance with law. The prayer requests a direction from this court to the Government directing it for making a reference. It has to be noticed that making a reference is the pure discretion of the Government. A writ court cannot direct the state Government to mandatorily refer a dispute to the industrial tribunal or labour court. On this principle reference can be made to the ruling of the Hon'ble Supreme Court of India in Ram Avtar Sharma V. State of Haryana2.
9. Conciliation is a persuasive process of settling industrial disputes. It is a process by which the conciliation officer persuades disputants who come to an equitable adjustment of claims. The conciliation officer, however, is not itself a decision maker. The ultimate decision is of the disputants themselves. Section 12 of the Industrial Disputes Act, 1947 provides the duties of conciliation officers. Sub-section 1 provides as to how he shall hold conciliation proceedings in the manner prescribed by the provisions. The conciliation officer must see for the purpose of this conciliation proceedings as to whether an industrial dispute exists or is apprehended. Thus, when a representation is made before him, he holds the responsibility to 2 (1985) 3 SCC 189 10 Dr. VRKS, J W.P.No.18946 of 2007 verify and find out whether it raised an industrial dispute or not. Be it noted, he cannot decide the merits of the dispute. The incompetence to decide the merits of the dispute does not mean that he is disempowered from looking at the representation to find out the existence or otherwise of a dispute. In the case at hand, the entire dispute raised before him is based on clause 35(e) of the settlement dated 03.04.2004. If the fact situation were that the earlier settlement continued and Sri M.Raja Rao was not given his due position then it may have been an industrial dispute insisting the conciliation officer to proceed further by making a reference to the Government in the event of any failure of settlement arrived at between the management and the union. However, that was not the situation. Clause 35(e) stood amended by the new settlement arrived at between the management and the new recognized union since 29.12.2006. Thus, by the time of retirement of Sri P.Anthony on 31.12.2006 and by the time Sri M.Raja Rao's candidature had to be considered, it was amended settlement that was in place. In the light of the amended provision, the management had to consider the cases. It is undisputed that the grievance raised by Sri M.Raja Rao would not survive if his case is considered under the amended clause 35(e) of the settlement. What the conciliation officer did was only a verification of existence or otherwise of the industrial dispute. When the dispute was raised before him under a non-existing clause of the settlement, he recorded the same stating that the principle which was espoused before him was no more in 11 Dr. VRKS, J W.P.No.18946 of 2007 existence by virtue of the amended settlement and he accordingly held that there was nothing for his consideration and disposed of the representation accordingly. The impugned order cannot be categorized as one where the conciliation officer himself decided the dispute. Therefore, the writ of certiorari prayed here cannot be maintained.
10. It is also undisputed before me that Sri M.Raja Rao retired way back in the year 2012. In that view any espousal of his case at this length of time does not serve any purpose also. For the above reasons, this court finds no merit in this writ petition.
11. In the result, this writ petition is dismissed. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 22.04.2024 Dvs 12 Dr. VRKS, J W.P.No.18946 of 2007 234 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR WRIT PETITION No.18946 of 2007 Date: 22.04.2024 U Dvs