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3. The petitioner in Writ Petition No. 37/94 is a partnership firm engaged in the distribution of local brands of soft drink and soda, small scale motor vehicle repairs and fabrication and Mr. Erasmo de Sequeira is its partner. The petitioner in Writ Petition No. 38/94 is also a small scale business concern engaged in bottling its own brands of soft drinks and soda and the said Mr. Sequeira is also its partner.

4. The workmen of the petitioner were always in the past represented by a Union called, the Goa Trade and Commercial Workers' Union and various settlements were arrived at between the petitioner and their workers represented by the same Union in respect of several benefits to be dispensed to the workmen, the latest one which is the subject-matter of the petitions is dated December 9, 1986. It was stated in the petitions that the wages of the employees were linked to the variable dearness index in virtue of an earlier settlement and the rate was maintained by the aforesaid last settlement of 1986. Subsequent to this settlement there was a gradual decline in the demand for its products and the petitioner's essential source of income was coming from the bottling units. Because of the heavy competition of other similar units like Parle, Pepsi, the situation went on deteriorating which resulted in a surplusage of workmen and an increasing difficulty for the petitioner to meet the escalating wage-bill. The petitioner brought to the attention of the Union and all the workmen their inability to meet the increasing wage cost and to continue with the existing work force. The settlement dated December 9, 1986 expired on June 30, 1988 and by letter dated July 1, 1988 the Goa Trade and Commercial Workers Union terminated the same. Thereupon in view of the bad situation which had not shown any improvement the petitioner/employer by their Circular, dated August 4, 1988 informed their workmen that with the expiry of the agreement with the Union their salary should be paid at levels prevailing in June, 1988 and that any change in the levels should be only according to the agreement reached following discussions on the fresh demand that has been received from the Union. Thereafter discussions with the Union commenced on August 26, 1988 on the new charter of demands which was presented to the petitioner on July 17, 1988. During the course of these discussions it was consistently explained by the petitioner to their workmen that due to the fact that there was no demand for its products it was not possible for the petitioner to make any increase in the wage structure in respect whereof a total freeze had been imposed and therefore the petitioner proposed to reduce the surplus manpower. However both the parties reached to an oral understanding to the effect that the Variable Dearness Allowance (V.D.A) should be continued frozen but the policy of the reduction of manpower and other steps should not be implemented. During the same discussion it was also agreed that the total wage freeze imposed would be partially relaxed to the extent that there should be an unfreeze of the yearly incremental levels in the scale of pay of the workmen till the new settlement was arrived at while the V.D.A would continue being frozen. In return for this understanding the petitioner decided to defer the retrenchment of the surplus labour, to raise the quantum of outdoor reimbursement, to resume payment of annual increment and besides each workman was given an advance of Rs. 500 as some sort of interim relief to be adjusted at the time of the new settlement. It was stated that the fact of all these payments is reflected in the vouchers, salary statements which are at Exh. D Colly. Suggesting that the workmen accepted all these benefits thus acknowledging the very existence of the sort of understanding reached between them with the petitioner whereby they received something more than the salary sought to be paid by the petitioner to the workmen immediately after the termination of the settlement at the level of July, 1988. Thereupon the last meeting of the Goa Trade and Commercial Workers Union was held on December 31, 1990 and from July 1, 1988 till January, 1991 the workmen accepted the benefits which were granted to them without making a single demand or claim in respect of V.D.A. for all this period. However, somewhere on January, 21, 1991 the petitioner received a letter from the Respondent No. 3, the new Union to which the workmen joined by changing loyalties from the previous Union, informing the petitioner about its formation and simultaneously on the same day a separate letter was addressed to the petitioner by the same Union claiming V.D.A. from the earlier period of July, 1988. In that letter the petitioner was informed that an application had been made to the Respondent No. 1 the Labour Commissioner who is also the Authority under the Payment of Wages, Act, complaining about the non-payment of V.D.A. for the back period. The Respondent No. 1 after entertaining the said application under the Payment of Wages Act issued to the petitioner a notice which was replied by the petitioner. Thereupon the Respondent No. 1 without proceeding with that application which was kept pending decided to act upon the provisions of the Industrial Disputes Act, 1947 (hereinafter called the Act) and without causing the dispute to be referred to the Labour Court or suggesting to the Government to make a reference to the Industrial Tribunal, he himself resorted to summary proceedings under Section 33(C)(1) by illegally adjudicating the dispute when he had no authority to do so. Thus the Respondent No. 1 issued a certificate to the Collector for recovery of the alleged dues from the petitioner towards V.D.A. by depriving them from placing its case "before the adjudicating authorities under the Act. It is the case of the petitioner that since it was a disputed claim which was not arising out of any settlement which had been already terminated and the V.D.A. sought to be recovered was for a period subsequent to the termination of the settlement the benefit, if any, could not have been enforced under Section 33(C)(1) and that at the most only Section 33(C)(2) would be available as a prescribed mode of its recovery. It was further stated that while seeking to exercise jurisdiction under Section 33(C)(1) the Respondent No. 1 has not given to the petitioner any hearing before the adjudication of the dispute and issuing of the certificate sent to the Collector. The petitioner also stated that pursuant to their reply to the show-cause notice, the Respondent No. 1 deferred action under Section 33(C)(1) and initiated conciliation proceedings under Section 10(1) by making the claim of V.D.A. arrears its subject-matter and invited the petitioner to participate in the same. During these conciliation proceedings several proposals were floated clearly implying therefor that he was satisfied about the existence of an industrial dispute which required to be settled, in which case only the Labour Commissioner had powers to call the parties for conciliation proceedings. It was however stated that the position in law as far as the powers under Section 33(C) is concerned is that Section 33(C)(1) can be exercised only when there is a settlement or award and there is no dispute in regard to the dues claimed by the workmen. When there is a dispute then Sub-section (2) is attracted and the parties are required to approach the Labour Court or a reference is to be made to the Industrial Tribunal. In this particular case the workmen approached the Labour Court by their application dated December 4, 1991 filed by Respondent No. 3. This means that the Respondent No. 3 acknowledged that there was a dispute to be adjudicated by the Court with regard to the wages of the workmen. Respondent thus tried to play safe. On one side they moved the Labour Commissioner while on the other side approached the Labour Court wherein they claimed V.D.A. calculated on the basis of the index of cost of living with regard to the month of October, 1991 which would mean practically to claim V.D.A. from 1988 onwards inspite of the same having been frozen by mutual agreement. In this proceeding before the Labour Court the issues were framed, amongst them issue No. 2 involving the liability of the petitioner with regard to V.D.A. This issue was the only relevant one which the Labour Court had to adjudicate and therefore the Labour Commissioner had no authority to adjudicate the said issue. However the proceedings before the Labour Court came to a halt because there was no Presiding Officer available and in the meantime the Respondent No. 1 (Labour Commissioner) issued the certificate under Section 33 by exercising powers under Section 33(C)(1) on the basis whereof a certificate of demand dated November 25, 1991 was issued by the Collector. No sooner the petitioner received the order of the Collector, he approached the Civil Court praying for stay of the recovery sought to be made on the strength of demand notice. The suit was filed on the ground that the order of the Commissioner was a nullity and should therefore be set aside. An ex-parte stay given by the Court was subsequently vacated by Order, dated December 18, 1992. In this order the Civil Court while declining to exercise jurisdiction gave a clear finding that the controversy was involving an industrial dispute which was to be adjudicated under the Industrial Disputes Act Hence the vacation of the stay was merely on the ground or want of jurisdiction of the Civil Court to deal with the matter. In appeal the High Court upheld the stand taken by the Civil Court to the effect that it had no jurisdiction to entertain the suit. This was followed by the Order of the Supreme Court which has rejected Special Leave Petition moved by the petitioner against the judgment and order of the high Court. In the meanwhile the Respondent No. 1 issued notices, dated July 26, 1991, September 13/16, 1991, December 27, 1991 and August 4, 1993 for claims arising out of the impugned settlement, dated December 9, 1986. The petitioner replied by its letters, dated August 9, 1991, September 25, 1991, January 11, 1992, August 14, 1993 and August 23, 1993 raising objections to the jurisdiction of respondent Nos. 1 and 2 to entertain any claim under such settlement. This was followed by a fresh demand notice dated November 25, 1991 and May 13, 1993 for Rs. 5,29,720 and the demand notice, dated November 10, 1993 for payment of Rs. 2,80,355.95 of Respondent No. 2 in Writ Petition No. 37/94 as well as another demand notice, dated November 25, 1991 and May 13, 1993 for Rs. 3,95,670 and the demand notice, dated November 10, 1993 for payment of Rs. 2,14,990, dated November 10, 1993 also from respondent No. 2 in Writ Petition No. 38/94. The petitioner filed two more suits before the Civil Judge, S.D. being one registered under No. 256/93/A and the other under No. 257/93/A for declaration that the impugned notices were null and void. In the said suits applications for interim relief were moved with a prayer for ex-parte injunction. However the Civil Judge declined to grant ex-parte injunction and posted the same for reply of the respondents. On September 18, 1994 warrants were issued for attachment of movable and immovable property of the petitioner at their factory at Borim. The warrants were issued in execution of the demand notices which are impugned in these petitions. On January 20, 1994 vehicles belonging to the petitioner were attached in execution of the warrants. The petitioner moved applications for temporary injunction in the aforesaid suits, but the learned Judge of the trial Courts declined to grant ex-parte injunction in view of its earlier judgment to the effect that the trial Court had no jurisdiction to entertain the subject-matter of the suit. The petitioner states that being aggrieved by the notices, dated July 26, 1991, September 13/16, 1991, December 27, 1991, August 4, 1993 of the Respondent No. 1 and notices, dated November 25, 1991, May 13/1993 andNovember 10, 1993 of Respondent No. 2 has filed the present petitions challenging its validity and legal standing.

5. On behalf of the petitioner Shri G. Sardes-sai, learned Counsel, has submitted that a settlement arrived at in accordance with the Industrial Disputes Act ceases to be a settlement as defined under the Act on the termination of the settlement and turns itself into a mere contract between the parties. Thus, on such termination the rights recognised by this settlement cannot be enforced in the mariner prescribed by the Act, namely, in its Section 33(C)(1), although the rights emerging from the settlement continue to flow until superseded by another agreement. In the instant case, the learned Counsel stated, these rights were superseded by an oral agreement or understanding and the issue as to whether this oral understanding has superseded the rights still flowing from the terminated settlement could not have been summarily adjudicated by the Labour Commissioner. This type of dispute had to be decided by the Labour Court or by the Industrial Tribunal. The position in law is that the powers under Section 33(C)(1) can be exercised only when there is a valid and operative settlement or award and there is no dispute regarding the claimed dues. If such dispute arises then Sub-section (2) is attracted and the parties have to approach either the Labour Court or the Commissioner has to cause a reference to be made by the Government to the Industrial Tribunal. Thus, the learned Counsel urged, Section 33(C)(1) is a provision of the nature of execution which cannot be availed of by the workmen in respect of any right under dispute once the settlement is terminated and only Sub-section (2) can be pressed into service for the adjudication of a dispute arising out of a terminated settlement. The learned Counsel placed reliance in this respect on the case of Managaldas Narandas v. Payment of Wages Authority, Ahmedabad and Ors., (1957-II-LLJ-256) (SC). In this case, under the Industrial Disputes Act, a Division Bench of this Court while dealing with the question of the effect of termination of an award by the employer under Section 19(6) of the Act, has held that after the statutory contract is terminated by notice the employer by failing to abide by the terms of the award does not incur penalties provided by the Act, nor can the award be enforced in the manner prescribed by Section 20 of Industrial Disputes (Appellate Tribunal) Act, 1950. But the termination of the award has not the effect of extinguishing the rights flowing therefrom and as such by the termination of the award the contract of employment is not terminated.

13. The petitioner's contention is that notwithstanding the fact that the rights emerging from the earlier settlement were deemed to have continued to flow for the workmen even after its termination, namely, with regard to the V.D.A. neither the Respondent No. 3 (hereinafter called the respondent) could have sought to enforce these rights in the manner prescribed in the Act nor was it open to the Labour Commissioner to use powers of adjudication of the disputed claim with regard to dues which could not be said as arising out of a settlement any more, once there was no valid settlement after its termination and as such he had no authority to exercise jurisdiction in terms of Section 33(c)(1). Thus the remedy available for the respondents was to approach the Labour Court for adjudication of the disputed claim under Section 33(c)(2) or instead to move the appropriate Government for a Reference of the industrial dispute in terms of Section 10(1) of the Act. According to the petitioner's own case, consequent upon the termination of the settlement of 1986 the "contract" which was deemed to subsist on the same terms and conditions of the earlier settlement stood modified so far as the freezing of the V.D.A. is concerned by virtue of a new concluded agreement which although remained oral and was never reduced to writing has been since then acted upon by the parties throughout from the year 1988 to 1991. This concluded agreement, the petitioner says, is reflected in various other benefits worked out and released in the course of the oral understanding and which inspite of not making part of the old settlement the workmen availed of from the time of its termination in lieu of the claim for V.D.A. which they did not press for about more than two years till the workmen changed loyalties from the previous Goa Trade and Commercial Workers Union to which they were affiliated and joined the respondent's union in the year 1991.

19. Therefore if the terms and conditions of the settlement of 1986 are to be held as subsisting inspite of its valid termination, obviously the right of the workmen to claim the overdue V.D.A. could not have been disputed by the petitioner, bearing in mind that this was one of the items agreed and inserted in the earlier settlement which could not have been thus disturbed even after it ceased to operate unless replaced by any other one or by a contract with the same force and authority of a fresh settlement. Similarly the fact of the workmen having abstained from demanding its payment for all this period of more than two years following the cessation of the settlement ostensibly during the period of negotiations of a new agreement need not be also construed as a waiver of their right to press for its demand or as an indication of the existence of a fresh concluded agreement whereby the terminated settlement stood modified with regard to the terms and conditions of the pre-existing contract deemed to operate after the termination of the settlement of 1986.