Full Judgment Text
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PETITIONER:
INDIAN OXYGEN LTD.
Vs.
RESPONDENT:
THE WORKMEN AS REPRESENTED BY INDIAN OXYGEN KARAMCHARI UNION
DATE OF JUDGMENT09/01/1979
BENCH:
SHINGAL, P.N.
BENCH:
SHINGAL, P.N.
KAILASAM, P.S.
CITATION:
1979 AIR 1196 1979 SCR (2) 911
1979 SCC (3) 291
CITATOR INFO :
R 1980 SC 125 (4)
ACT:
U.P. Industrial Disputes Act, 1947 (28 of 1947) Ss.
2(f), 3(d), 4K, 6B, 6I, 7(ii)-Industrial dispute-Tests for
calling a dispute an "industrial dispute" -Establishment had
a union affilated to a Federation and a non-affiliated
union-Employer entered into settlement with affiliated
union-Non-affiliated union not a party to such settlement-
Dispute raised by a non-affiliated union on the same point-
If an industial dispute.
HEADNOTE:
Industrial Disputes Act, 1947 (14 of 1947) S. 18-
Applicability of.
The appellant company had its establishments in a
number of States in the country. In its establishment at
Kanpur there were two unions, one of which, the Shramik
Sangh, was affiliated to the Federal Union comprising of
some of the trade unions in the various establishments while
the other, the Karamachari Union, was not. A demand relating
to revision of dearness allowance among others, was raised
by both the Unions at Kanpur. The Shramik Sangh and the
appellant entered into a settlement. Karamchari Union which
was not a party to the settlement, made an application to
the State Government to constitute a conciliation board for
reference of the dispute. The Board was constituted. In the
meantime, however, to bring the settlement within the
purview of the U.P. Industrial Disputes Act the Shramik
Sangh applied for the constitutation of a conciliation
board. A conciliation board was constituted and the
memorandum of settlement arrived at between the parties was
registered even though the dispute on the same point raised
by the Karamchari Union was pending before the Conciliation
Board all the while. The dispute raised by the Karamchari
Union was, therefore, referred to a Tribunal under s 4K of
the Act.
The Tribunal rejected the appellant’s contention that
it had no jurisdiction to adjudicate on the dispute.
On appeal to this Court it was contended that it was
implicit in the various provisions of the U.P. Act that a
settlement arrived at before a Conciliation Board by a Union
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of the majority of workmen was binding on all the workmen
and that in the absence of a provision like s. 18 of the
Industrial Disputes Act, 1947 it was not permissible for the
Karamchari Union to contend that the settlement would bind
only the members of the Shramik Sangh and in any event
reference of the dispute to a Tribunal was without
jurisdiction.
Dismissing the appeal,
^
HELD: 1. The State Government rightly took the view
that the controversy raised by the Karamchari Union was an
industrial dispute. [922 G-H]
2. A reading of the relevant provisions of the U.P.
Industrial Disputes Act, 1947, clearly shows that there is
nothing in the Act to require that the dispute
912
or difference should be raised by all the workmen of the
industry, or by everyone of them, or even by a majority of
them. It is enough if the controversy is between the
employer on the one side and workmen on the other. There is
also nothing in the Act to require that the workmen raising
the controversy should form a majority of the employees, the
reason being that where it is found that the controversy
affects, or will affect, the interests of workmen as a
class, the law envisages that, in the interest of industrial
peace, it should be examined and decided in one of the modes
provided by it. [917 D-F]
3. An individual dispute cannot, however, be said to be
an industrial dispute unless the other workmen associate
themselves with it. No hard and fast rule can be laid down
to decide when and by how many workmen an industrial dispute
could be raised within the meaning of the Act, or whether a
minority union or even an unrecognised union, could raise an
industrial dispute. It is enough if there is a potential
cause of disharmony which is likely to endanger industrial
peace, and a substantial number of workmen raise a dispute
about it, for then it is permissible to view it as an
industrial dispute within the meaning of clause (1) of s. 2
of the Act, and to refer it for adjudication to a tribunal.
[917 F-H]
4. The settlement arrived at with the Federal Union did
not bind the Karamchari Union as it was not a party to it
and was not affiliated to the Federal Union. Section 18 of
the Central Act provides that a settlement arrived at by
agreement between the parties otherwise than in the course
of conciliation proceedings shall be binding on the parties
to the agreement. [918 E]
5. Moreover, the settlement arrived at with the Shramik
Sangh was under the provisions of the U.P. Act and,
therefore, s. 18 of the Central Act had no application.
There is no provision similar to it in the U.P. Act. [918 G]
6. There was no occasion for invoking s. 7 of the U.P.
Act. That section is mainly intended to serve the purposes
contemplated by s. 3 of the Act, namely, securing the public
safety or convenience or the maintenance of public order or
supplies and services essential to the life of the community
or for maintaining employment etc. It cannot therefore be
said that the settlement arrived at by the Sangh became
binding on all workmen including the Karamchari Union which
was not a party to it nor is there any other provision in
the Act or the Rules making the settlement binding on the
Karamchari Union. Nor again can it be said that s. 3(d) of
the U.P. Act justifies the argument that merely because a
union, consisting of a majority of workers, can represent
all the workmen, the settlement arrived at before a
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conciliation board would bind those who are not parties to
it. [919 B, C, F-G]
7. In the absence of any prohibitory provision in the
Act it cannot be said that the State Government had no
jurisdiction to make a general reference under s. 4K of the
U.P. Act merely because the settlement was made by a
majority union and was binding on the Shramik Sangh. The
Tribunal has found it as a fact that the Karamchari Union
represented a substantial number of the workmen of the
company at Kanpur, and there is no reason why they should be
debarred from raising a dispute for the benefit of all the
workmen as a class. It is well recognised, that "collective
bargaining" can take place between the employer and a bona
fide labour union and there is nothing on the record to show
that the Karamchari Union was not a bona fide union. [920 A-
C]
913
In the instant case the Shramik Sangh entered into the
settlement in collusion with the company and the
Conciliation Board finalised the settlement even though the
Karamchari Union’s dispute was still pending. No effort was
made to make it a party to the proceedings. Although, to
begin with, a both the Shramik Sangh and the Karamchari
Union were opposed to the settlement earlier arrived at by
the Federal Union the Shramik Sangh changed its stand and
endorsed the settlement of the Federal Union when it was
placed on the notice board. The Tribunal also found as a
fact that the settlement was not even put on the notice
board of the company. In these circumstances if the State
Government had decided to make a reference of the dispute to
the Tribunal it could not be said that it did not apply its
mind to the controversy or committed an illegality in doing
so. [920 H-921 C]
8. Even assuming that the earlier settlements were in
the nature of a package deal arrived at between the company
and the Federal Union it cannot be said that there was any
legal bar to the reference of the dispute regarding one
particular item of the package deal for adjudication by the
tribunal so as to vitiate the reference. The company brought
this aspect of the matter specifically to the notice of the
State Government. The point does not, however, relate to the
jurisdiction or the maintainability of the reference under
s. 4K for it is essentially a matter for the Tribunal’s
examination with due regard to the evidence before it. [921-
F-G]
Herbertsons Ltd. v. Workmen of Herbertsons Ltd. & Ors.
[1977] 2 SCR 15 and New Standard Engg. Co. Ltd. v. M. L.
Abhyankar & Ors., [1978] 1 L.L.J. 487; held inapplicable.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2335 of
1978.
Appeal by Special Leave from the Judgment and Order
dated 14-7-78 of the Industrial Tribunal U.P. in
Adjudication Case No. 15/77.
F. S. Nariman, O. C. Mathur and D. N. Misra for the
Appellant. M. K. Ramamurthi, Jitendra Sharma and Janardan
Sharma for the Respondent.
The Judgment of the Court was delivered by
SHINGHAL J.-This appeal by special leave is directed
against the order of Industrial Tribunal (III) U.P. at
Kanpur dated July 14, 1978, deciding the following two
preliminary issues which were raise by the Indian Oxygen
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Ltd. (hereinafter referred to as the Company)
"(1) Whether present dispute is not an industrial
dispute in the light of the objections raised
by the employers in paragraph (1) of their
written Statement?
914
(2) Whether the present Order of Reference is bad
in law in the light of the objections raised
by the employers in paragraph (1) of their
Written Statement?"
The Company employed some 5400 workmen in its
establishment in West Bengal, Bihar, U.P., Assam, Punjab,
Delhi, Maharashtra, Gujarat, Tamilnadu, Andhra Pradesh,
Karnataka and Kerala. There were several recognised trade
unions of the workmen. The All-India Federation of Indian
Oxygen Employees Union (hereinafter referred to as the
Federal Union) was the recognised federation of some of the
trade unions from 1973 onwards. The Indian Oxygen Shramik
Sangh (hereinafter referred to as the Shramik Sangh), which
represented some of the workmen at Kanpur, was affiliated to
the Federal Union. There was another union known as the
Indian Oxygen Karamchari Union (hereinafter referred to as
the Karamchari Union) which was registered much earlier but
its constitution was revised because of the merger of two
other unions in it and was approved by the Registrar of
Trade Unions on May 10, 1978. It was not a member of the
Federal Union.
The Federal Union raised a charter of demands in
February 1973 of all India nature and a settlement was
arrived at on June 22, 1973, according to which the demand
for revision of pay scales was to be taken up for discussion
at a mutually convenient date. A similar settlement was made
with the Shramik Sangh on November 22, 1973. It was followed
by negotiations and an order was made for the constitution
of a Conciliation Board under section 3(d) of the U.P.
Industrial Disputes Act, 1947 (hereinafter referred to as
the U.P. Act). A memorandum of settlement was drawn up on
April 30, 1974 between the Company and the Shramik Sangh. It
was agreed, interalia, that the question of revision of the
dearness allowance of the Kanpur unit employees would be
negotiated by the Company with the Federal Unit and/or the
Union on or before April 1, 1975.
In the meantime, the Karamchari Union made on
application on January 23, 1975, for the constitution of a
Conciliation Board under section 3(d) of the U.P. Act and
the Board was constituted by an order dated January 30,
1975. The Company raised objections to the constitution of
the Board on February 24, 1975, but the proceedings were
commenced by the Board on February 26, 1975, and March 19,
1975 was fixed for appearance. The Company however proceeded
with its efforts for a settlement with the Federal Union,
and entered into a settlement with it on June 30, 1975. In
order to bring it under the purview of the U.P. Act, the
Shramik Sangh applied on
915
July 18, 1975, for the constitution of a Conciliation Board
under that Act and a Conciliation Board was constituted on
July 29, 1975. A memorandum of settlement about the dearness
allowance was drawn up with the Shramik Sangh on August 27,
1975; in accordance with rule 5A of the U.P. Industrial
Disputes Rules, 1957, in Form IA, even though the dispute
regarding the variable dearness allowance, which had been
raised by the Karamchari Union earlier, was pending all the
while. The settlement with the Shramik Sangh made a specific
reference to the all-India Federation settlement which had
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been made on June 30, 1975. That settlement with the Federal
Union was in fact annexed to the settlement with the Shramik
Sangh and was treated as a settlement under the U.P. Act.
The dispute regarding the variable dearness allowance
which had been raised by the Karamchari Sangh by its
application dated January 23, 1975 for the constitution of a
Conciliation Board, did not however bear fruit. Moreover the
settlement which had been reached between the Company and
the Federal Union was opposed by the Shramik Sangh and the
Karamchari Sangh. The Conciliation Officer did not therefore
pass an order for the registration of the aforesaid
settlement. The Shramik Sangh, which had claimed dearness
allowance according to the Kanpur cost of living index,
however changed its stand and, as has been stated, it filed
a memorandum of the settlement on August 27, 1975. These
facts are not in dispute before us.
It was in these circumstances that the State Government
made an order on May 23, 1977, referring the dispute between
the Company and the Karamchari Sangh for adjudication under
section 4K of the U.P. Act. The precise matter of dispute
was the question whether the dearness allowance payable by
the Company to its workmen should be revised and linked with
the consumer price index for the industrial workers at
Kanpur computed by the Labour Bureau at Simla and, if so,
from what date and with what other details.
The Company filed a written statement in which it
raised preliminary objections to the maintainability of the
reference. That gave rise to the two issues mentioned above
and as they have been found against the Company by the
impugned order of the Tribunal, it has come up in appeal to
this Court.
It has been argued by Mr. Nariman, learned counsel for
the Company, that it is implicit in the various provisions
of the U.P. Act that a settlement arrived at before a
Conciliation Board, by a union of a majority of the workmen,
is binding on all the workmen. Reference in this connection
has been made to the Preamble and sections
916
2(t), 3(d), 6B, 6-1, 7(ii) of the U.P. Act, rules 5A and 40
and Forms 1A and III of the U.P. Industrial Disputes Rules,
and to clauses (4) and (8) of the order dated December 3,
1957 made under section 3(d) of the U.P. Act. It has further
been argued that the power to enforce a settlement under
section 7 of the U.P. Act shows that the settlement is meant
to be binding on all the workmen. It has also been argued
that once a valid settlement is made, it is not permissible
to refer a dispute (covered by it) for adjudication. An
attempt has been made to support that contention with
reference to some decisions. Learned counsel has gone to the
extent of arguing that as there is no provision in the U.P.
Act similar to sub-sections (1) and (3) of section 18 of the
Industrial Disputes Act, 1947, (hereinafter referred to as
the Central Act), it is not permissible for the Karamchari
Union to contend that the settlement which had been made
with the Shramik Sangh will bind only the workmen who were
members of that Sangh. In the alternative, it has been
argued that the State Government did not have the
jurisdiction to make a valid reference under section 4K of
the U.P. Act as the demand for variable dearness allowance
had been settled through the Shramik Sangh in respect of a
majority of the workmen of the Kanpur unit and was binding
on the members of that Union. Then it has been argued that
the settlement which had been made with the Federal Union on
June 30, 1975 was by itself and independently of the U.P.
Settlement (with the Shramik Sangh), a settlement under
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section 18(1) of the Central Act and was binding on the
members of the Shramik Sangh as it was affiliated to the
Federal Union and for that reason also it was not
permissible to make a reference for adjudication in respect
of all the workmen including those who belonged to the
Shramik Sangh. It has further been argued that the
settlement of June 30, 1975 with the Federal Union would
have been operative even without the Shramik Sangh
settlement and section 18(1) of the Central Act would be
applicable to it as it was not a settlement during the
course of conciliation proceedings and was binding on the
Federal Union under section 36(1)(a) and (b) of the Central
Act and it was not permissible to make a general reference
covering even the workmen belonging to a union affiliated to
the Federal Union. It has been urged that the reference
should have been restricted to those workmen who were not
governed by the settlement of June 30, 1975 or that
settlement should also have been referred to the Tribunal if
it was felt by the State Government that it was not valid or
fair. Lastly, it has been argued that the settlements of
June 30, 1975 and August 27, 1975 were in the nature of
package deals arising out of collective and mutual
bargaining and a reference relating to one term of the deals
917
was invalid. Reference for this proposition has been made to
Herbertsons Limited v. Workmen of Herbertsons Limited and
others(1) and New Standard Engg. Co. Ltd. v. M. L.
Abhayankar and others(2).
Thus the question for consideration before us is
whether the State Government had the authority or
jurisdiction to make the order dated May 23, 1977, under
section 4K of the U.P. Act referring the dispute regarding
variable dearness allowance for adjudication to the
Tribunal. The two issues before the Tribunal related to that
basic question and it will be sufficient for us to examine
it in the facts and circumstances of this case and the law
bearing on it.
Section 4K of the U.P. Act provides that where the
State Government is of opinion that any industrial dispute
exists or is apprehended, it may refer the dispute or any
matter appearing to be connected with, or relevant to the
dispute to a Tribunal. Clause (1) of section 2 of that Act
defines an industrial dispute to mean, inter alia, any
dispute or difference between employers and workmen which is
connected with the terms of their employment. The expression
"workmen" has been defined in clause (z) of section 2 to
mean, speaking generally, "any person" employed in any
industry in the capacity mentioned therein. There is nothing
in the Act to require that the dispute or difference should
be raised by all the workmen of the industry, or by every
one of them, or even by a majority of them. It is enough if
the controversy is between the employer on the one side and
workmen on the other. So also, there is nothing in the Act
to require that the workmen raising the controversy should
form a majority of the employees. The reason appears to be
that where it is found that the controversy affects, or will
affect, the interest of workmen as a class, the law
envisages that, in the interest of industrial peace, it
should be examined and decided in one of the modes provided
by it. An individual dispute cannot however be said to be an
industrial dispute unless of course the other workmen
associate themselves with it. No hard and fast rule can
possibly be laid down in such circumstances to decide when
and by how many workmen an industrial dispute can be raised
within the meaning of the Act, or whether a minority union,
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or even an unrecognised union, can raise an industrial
dispute. It is enough if there is a potential cause of
disharmony which is likely to endanger industrial peace, and
a substantial number of workmen raise a dispute about it,
for then it is permissible to take the view that it is an
industrial dispute within the meaning of clause (1) of
section 2 of the U.P. Act, and to refer it for adjudication
to a Tribunal. Reference in this connection may be made to
the Tribunal’s finding
918
of fact that although the Karamchari Union was not a
recognised union and it was not a member of the Federal
Union, it had a "substantial number of workmen of the
concern as its members." We have no doubt therefore that the
State Government rightly took the view that the controversy
raised by the Karamchari Union was an industrial dispute.
It cannot be gainsaid that the dispute in the present
case was raised by the Karamchari Union and they made an
application for the constitution of a Conciliation Board as
far back as January 23, 1975, and the Board was constituted
on January 30, 1975. It will be recalled that the Company
filed its objections before the Board on February 24, 1975,
and the Board fixed March 19, 1975 for their consideration.
It is not in controversy before us that the conciliation
effort met with failure, and the point for consideration is
whether the State Government lost its power to make a
reference under section 4K of the U.P. Act merely because of
the settlement dated June 30, 1975 between the Company and
the Federal Union under the Central Act and the settlement
dated August 27, 1975 between the Company and the Shramik
Sangh in the conciliation proceedings under the U.P. Act.
Section 18 of the Central Act deals with the binding
effect of settlements and awards. Sub-section (1) of that
section provides that a settlement arrived at by agreement
between the employer and workmen otherwise than in the
course of conciliation proceeding shall be binding on the
parties to the agreement. The settlement dated June 30,
1975, with the Federal Union did not therefore bind the
Karamchari Union as it was not a party to it and was not
affiliated to the Federal Union.
It is true that the Shramik Sangh made an application
for the constitution of a Conciliation Board on July 18,
1975, and a Board was constituted on July 29, 1975. That in
fact led to a settlement with the Shramik Sangh on August
27, 1975. But that took place under the provisions of the
U.P. Act and Mr. Nariman has himself pointed out the
proceedings in fact took place under rule 5A of the U.P.
Industrial Disputes Rules, 1957 and the memorandum of
settlement was prepared in Form 1-A. Sub-section (3) of
section 18 of the Central Act could not therefore be
attracted to that settlement and there is no provision
similar to it in the U.P. Act.
We have gone through section 7(ii) of the U.P. Act and
the rules made thereunder, as well as the order dated
December 31, 1957, on which much reliance has been placed by
Mr. Nariman. Clause (ii) of section 7 deals with the power
of the State Government to
919
enforce, by order in the prescribed manner, for such period
as may be specified, the whole or any part of an agreement
reached in conciliation proceedings between the parties to
an industrial dispute. But the section, it appears, is
mainly intended to deal with an order passed under any other
enactment, and is meant to serve the purposes contemplated
in section 3, namely, for securing the public safety or
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conveniences or the maintenance of public order or supplies
and services essential to life of the community, or for
maintaining employment etc. It has not been urged before us
that there was any such occasion for invoking section 7. A
mere reference to that section cannot therefore sustain the
argument that the settlement dated August 27, 1975, became
binding on all workmen including the Karamchari Union, which
had nothing to do with it and was not even a party to it,
and that the Union was precluded from raising an industrial
dispute and the State Government was precluded from
referring it for adjudication under section 4K of the U.P.
Act. Rule 5A of the U.P. Industrial Disputes Rules and the
preparation of the memorandum of settlement in Form 1-A
could not therefore justify the argument to the contrary. So
also, a reference to Form III of the Rules which provides
that a person who contravenes or attempts to contravene, any
provision of the State Government’s order shall be liable,
on conviction, to fine or to imprisonment not exceeding
three years or both, is hardly of any avail for obvious
reasons. In fact Mr. Nariman has not found it possible to
support his argument about the binding nature of the
settlement dated August 27, 1975, on the basis of such a
penal provision in a form appended to a set of Rules, and we
need not examine it any further.
We have gone through the order which has been made
under section 3(d) of the U.P. Act, on paragraph 8 of which
considerable reliance has been placed by Mr. Nariman. It was
made on December 31, 1957, and was to remain in force for
one year under paragraph 15. Even otherwise, paragraph 8
merely makes provision for impleading other workmen, or
concerns, or a union, in proceedings before a Conciliation
Board. It provides that it would be enough to implead a
union covering the majority of such "concern or workmen".
But such a provision cannot justify the argument that merely
because a union consisting of a majority of workers can
represent all the workmen, the settlement made in the
Conciliation Board will bind those who are not parties to
it.
As regards the alternative argument of Mr. Nariman that
as the settlement dated August 27, 1975, was made by a
"majority union", it was, at any rate, binding on the
members of the Shramik Sangh, and
920
that the State Government had no jurisdiction to make a
general reference under section 4K of the U.P. Act, it will
be sufficient to say that no such bar could possibly be
raised in the absence of any prohibitory provision in the
law. As has been stated, the Tribunal has found it as a fact
that the Karamchari Union represented a substantial number
of the workmen of the Company at Kanpur, and there is no
reason why they should be debarred from raising a dispute
for the benefit of all the workmen as a class. It is well
recognised, and cannot be disputed, that "collective
bargaining" can take place between the employer and a bona
fide labour union, and there is nothing on the record to
show that the Karamchari Union was not a bona fide union. In
fact it may well be said that as the Shramik Sangh was an
affiliated unit of the Federal Union, it was not permissible
for it to make the application dated July 18, 1975, for the
constitution of a Conciliation Board to resolve the dispute
and to enter into the memorandum of settlement dated August
27, 1975. The Tribunal has examined the file (No.391 of
1975) of the Conciliation Board case relating to the
industrial dispute raised by the Karamchari Union on January
23, 1975, about the payment of the dearness allowance to the
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workers of the Kanpur unit according to the cost of living
index for industrial workers at Kanpur, and the file of the
other conciliation case relating to the similar dispute
raised by the Shramik Sangh on July 18, 1975, and has stated
the factual position as follows-
"It is clear from the latter file that the
management of the Kanpur unit of the Company had
applied on 29-7-75 to the Regional Conciliation Officer
for the registration of the settlement reached between
the company and the All India Federation of Indian
Oxygen Employees Unions on 30-6-75 but on account of
the pendency of C.B. Case No.391/75 some information
was asked to be furnished by the company which the
company did not furnish. On the other hand, the
representatives of the Shramik Sangh and the Kanpur
unit of the company appeared before the Regional
Conciliation Officer, Kanpur on 27-8-75 and submitted a
brief memorandum of settlement making applicable to the
Kanpur unit the settlement which had been reached
between the company and the Federation on 30-6-75."
It will thus appear that the Shramik Sangh entered into
the settlement dated August 27, 1975 in collusion with the
Company and that the Conciliation Board allowed the
memorandum of settlement to be filed and finalised even
though the Karamchari Union’s dispute dated January 23, 1975
was pending and no effort was made to make it a
921
party to the proceedings which were taken at the instance of
the Shramik Sangh. It is important to remember in this
connection that although the settlement which had been made
by the Federal Union on June 30, 1975 was opposed by both
the Unions when it was placed on the notice board of the
Kanpur unit, the Shramik Sangh changed its stand and filed a
memorandum of settlement on August 27, 1975 endorsing the
settlement which had been made with the Federal Union on
June 30, 1975. The Tribunal has also stated it as a fact
that the settlement dated August 27, 1975 was not even put
on the notice board of the Company. If, therefore, the State
Government decided to make a reference of the dispute to the
Tribunal in these circumstances, it cannot be said that it
did not apply its mind to the controversy or committed an
illegality in doing so.
It has to be appreciated that it would not have been
practicable for the State Government to exclude the workmen
who were members of the Shramik Sangh (at Kanpur) from the
scope of the reference under section 4K of the U.P. Act and
to confine the dispute to the rest of the workmen, for that
might have given rise to one pay structure for one section
of the workmen (represented by the Karamchari Union) and
another for the other workmen (represented by the Shramik
Sangh). At any rate, this was not a matter at the threshold,
and is essentially for the Tribunal to examine on the merits
of the controversy.
We have also considered the other argument of Mr.
Nariman that as the settlements dated June 30, 1975 and
August 27, 1975 were in the nature of package deals, and
arose out of collective bargaining, it was not permissible
for the State Government to make a reference to the Tribunal
about one item of that deal, namely, that relating to the
variable dearness allowance. Our attention in this
connection has been invited to the statement of the
Company’s Personnel Manager V. John in which reference has
been made to the nature and the contents of the package. The
point does not however relate to the jurisdiction or the
maintainability of the reference under section 4K of the
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U.P. Act, for it is essentially a matter for the Tribunal’s
examination with due regard to the evidence before it. It
appears from the record that the Company brought this aspect
of the matter specifically to the notice of the State
Government in its representation dated April 20, 1976, and
it cannot be said that it was not before the Government when
it made the impugned order of reference dated May 23, 1977.
At any rate, it cannot be said that there is any legal bar
to the reference of the dispute regarding one particular
item of a
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package deal for adjudication by the Tribunal so as to
vitiate the reference at the threshold.
We have gone through the two cases which have been
cited by Mr. Nariman in this connection. Herbertsons Ltd.
(supra) was a case where all the workers of the Company had
accepted the settlement and received the arrears and the
emoluments according to it.In fact it was in the facts and
circumstances of that case that this Court took the view
that it was not possible to scan the settlement in bits and
pieces and hold some parts good and acceptable and others
bad. Even so, this Court expressed the view that if the
objectionable part was shown to outweigh all the other
advantages, the Court would be slow to hold the settlement
unfair and unjust. Herbertsons is therefore no authority for
the argument that a part of a package deal cannot be the
subject matter of a reference for adjudication by the
Tribunal. New Standard Engineering Co. Ltd (supra) was also
a different case, for there the justness and fairness of the
settlement was examined with reference to the situation as
it stood on the date on which it was arrived at, and it
cannot also avail the argument of Mr. Nariman about the
illegality of a reference merely because it relates to a
part of a package deal. That is essentially a matter for the
Tribunal to examine and adjudge on the merits of the
reference.
Lastly, Mr. Nariman has argued that as the members of
the Karamchari Union accepted the benefits of the settlement
which had been made with the Federal Union on June 30, 1975,
they were precluded from obtaining the order of reference
dated May 23, 1977. The argument is futile because the
Tribunal has specifically stated in its order under appeal
that even the settlement dated August 27, 1975 was not put
on the Company’s notice board and the emoluments of the
workmen were increased from July 1975. It has further been
stated that the members of the Karamchari Union "took the
increase but under protest vide the Union’s letter dated 28-
7-75 which is annexure D to the Workmen’s written
statement."
There is thus no force in the argument which have been
advanced for the purpose of showing that the settlements
dated June 30, 1975 and August 27, 1975 debarred the State
Government from making the impugned order of reference dated
May 23, 1977 under section 4K of the U.P. Act or that the
dispute was not an industrial dispute and the order was
otherwise bad in law. The appeal fails and is dismissed with
costs.
N.V.K. Appeal dismissed.
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