Full Judgment Text
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PETITIONER:
AMETEEP MACHINE TOOLS
Vs.
RESPONDENT:
LABOUR COURT HARYANA & ANOTHER
DATE OF JUDGMENT22/09/1980
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
KRISHNAIYER, V.R.
CITATION:
1980 AIR 2135 1981 SCC (1) 768
ACT:
Industrial Disputes Act, 1947, section 36, scope of.
HEADNOTE:
The appellant company manufactures machine tools at its
factory in Faridabad employing 250 workmen including the
second respondent, Sadhu Singh. Demands of the workmen for
an improvement in the conditions of the service led to
conciliation proceedings and a settlement under s. 12 was
recorded on June 20, 1969 by the Conciliation officer. The
settlement included a provision that the workmen would not
raise any demand involving further financial burden on the
appellant for a period of two years. Before the expiry of
that period, however, a fresh demand was raised on August
17, 1970 by the General Labour Union asking for dearness
allowance at 25 per cent. The management having refused this
demand the workmen resorted to a "sit down" strike on August
26 and 27, 1970. The second respondent Sadhu Singh was
charged with alleging serious misconduct. Sadhu Singh did
not participate in the inquiry. Accepting the report
submitted by the Inquiry officer that Sadhu Singh was guilty
of instigating the workmen to go on strike the services of
Sadhu Singh were terminated by the management with immediate
effect by an order dated September 14, 1970. The management
dismissed some other workmen also. The dismissal of all
workmen formed the subject of another settlement under s. 12
of the Act dated November 21, 1970 and it was agreed that
the dismissed workmen including Sadhu Singh should be
regarded as retrenched from service. The remaining workmen
agreed to resume work unconditionally. Sadhu Singh, took up
the matter before the Labour Court stating that not being a
signatory to the settlement of November 21, 1970 he was not
bound by it. The Labour court accepted his plea and made its
ward on September 30, 1972. It found that the domestic
inquiry was not proper inasmuch as notice of the inquiry had
failed to reach Sadhu Singh, thereby preventing him from
participating in the domestic inquiry. Further it held that
since Sadhu Singh had been ill from August 24, to September
9, 1970 he could not be said to have instigated the strike.
The appellant having failed before the High Court has come
in appeal after obtaining special leave from this Court.
Dismissing the appeal, the Court,
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HELD: Section 36 of the Industrial Disputes Act
provides for representation of the parties to a dispute. The
workmen are entitled by virtue of sub-section (1) to be
represented in a proceeding under the Act by a member of the
executive or other office bearer of a registered trade union
of which
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they are members or of a federation of trade unions to which
that trade union is affiliated, and where the workmen is not
a member of any trade union, he can be represented by a
member of the executive or other office bearer of a trade
union connected with, or by any other workman employed in
the industry in which the workmen is employed. It is not
obligatory, however, that a workman who is a party to a
dispute must be represented by another. He may participate
in the proceeding himself. Where conciliation proceedings
are taken and a settlement is reached, it is a valid
settlement and binding on the parties even if the workmen
who are party to the dispute participate in the proceedings
personally and are not represented by any of the persons
mentioned in s. 36(1) of the Act. In the present case; (1)
by executing a memorandum the several workmen who
individually signed it on 21st August, 1970 bound themselves
by the terms of the settlement, but as Sadhu Singh had not
signed the memorandum nor had he authorised any of the
workman to sign the memorandum on his behalf he was not
bound by the settlement. (2) The settlement of 21st
November, 1970 can on no account be understood as covering
and concluding the demand for recalling the order dismissing
Sadhu Singh, as his reinstatement was never included in the
charter of demands of the workmen which led to the
conciliation proceedings and those proceedings did not
involve the consideration of such a demand. In the
circumstances, it was open to Sadhu Singh to assail his
dismissal from service and to contend that the settlement of
21st November 1970 did not bind him. (3) The Labour Court
was right in adjudicating on the propriety of his dismissal
and, having found that the dismissal was not justified, in
granting relief. [771 F-772E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 785 of
1975.
Appeal by Special Leave from the Judgment and order
dated 7-1-1973 of the Punjab and Haryana High Court in Civil
Writ No. 6677/74.
A. K. Sen, S. K. Gambhir, A. K. Panda and Miss
Ramrakhiani for the Appellant.
Yogeshwar Prasad, A. K. Srivastava and Miss Rani
Chhabra for the Respondent No. 2.
The Judgment of the Court was delivered by
PATHAK, J.-This appeal by special leave is directed
against a judgment of the High Court of Punjab and Haryana
summarily dismissing a writ petition filed by the appellant.
The appellant is a private limited company which
manufactures machine tools as its factory in Faridabad. It
employs 250 workmen. The second respondent, Sadhu Singh, is
one of them. Demands by the workmen for an improvement in
the conditions of their service led to conciliation
proceedings under the Industrial Disputes Act, 1947, ("the
Act"), and on June 20, 1969, a settlement under s. 12 of the
770
Act in satisfaction of those demands was recorded by the
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Conciliation officer. The settlement included a provision
that the workmen would not raise any demand involving
further financial burden on the appellant for a period of
two years. Before the expiry of that period, however, a
fresh demand was raised on August 17, 1970 by the General
Labour Union asking for dearness allowance at 25 per cent.
The management demurred, and explained that having regard to
the structure of wages and allowances now payable under the
settlement, there was no justification for the demand. On
August 26, 1970 the workmen resorted to a "sit down" strike,
which continued the next day. According to the appellant, on
August 27, 1970, Sadhu Singh instigated the workmen to
"down" tools and go on a "sit down strike. Successive
notices by the management the same day failed to dissolve
the strike. Charges were framed against Sadhu Singh alleging
serious misconduct and a domestic enquiry was ordered. The
workman, it is said, declined to accept the charge-sheet
and, although he was directed to appear before the Inquiry
Officer, Sadhu Singh did not participate in the inquiry. On
September 13, 1970, the Inquiry officer submitted his report
to the management. According to him, the strike was illegal,
and Sadhu Singh was guilty of instigating the workmen to go
on strike, and besides he was guilty of loitering in the
factory. The findings being accepted by the management an
order followed on September 14, 1970 dismissing Sadhu Singh
from service with immediate effect. The President of the
General Labour Union then pressed the management to
reinstate Sadhu Singh. Meanwhile the management had taken
action dismissing other workmen also. The dismissal of all
the workmen formed the subject of a settlement under s.12 of
the Act on November 21, 1970, and it was agreed that the
dismissed workmen, including Sadhu Singh, should be regarded
as retrenched from service. The remaining workmen agreed to
resume work unconditionally. The memorandum of settlement
was signed by the management on the one hand and the
individual workmen on the other. A few days after, Sadhu
Singh wrote to the Labour Commissioner claiming that he was
not a signatory to the settlement and that he would settle
his dispute himself with the management. The State
Government referred the dispute in regard to the termination
of Sadhu Singh’s service for adjudication to the Labour
Court, Rohtak. While the management took its stand on the
facts found in the domestic inquiry report and relied on the
circumstance that the settlement dated November 21, 1970 was
binding on Sadhu Singh, Sadhu Singh asserted that he was not
guilty of any misconduct on August 27, 1970. He also
contended that the charge sheet had never been served on him
and therefore the exparte domestic inquiry was vitiated. The
771
Labour Court by its order dated September 20, 1972 found
that Sadhu Singh was not a signatory to the settlement of
November 21, 1970, and was, therefore, not bound by it. The
Labour Court made its award on September 30, 1972. It found
that the domestic inquiry was not proper inasmuch as notice
of the inquiry had failed to reach Sadhu Singh because it
had been sent to a wrong address, thereby preventing him
from participating in the domestic inquiry. On the merits of
the dispute the Labour Court found that Sadhu Singh had been
ill from August 24 to September 9, 1970, and that was
established by a medical certificate which, on inquiry from
the Employees State Insurance Department, was found to be in
order, and consequently it could not be believed that the
workman had instigated or participated in the "tool down"
and "sit down" strike. In support of its case that Sadhu
Singh was present within the factory premises on August 27,
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1970, the management placed reliance on a document
purporting to have been signed by the workmen and setting
forth the assurance that he would conduct himself properly
and be of good behaviour. The Labour Court said that if the
document be accepted as genuine there was sufficient reason
for accepting the assurance and refraining from taking any
action against the workman. The Labour Court held that the
dismissal was not justified and that Sadhu Singh was
entitled to reinstatement with continuity of previous
service and full back wages.
The appellant filed a writ petition in the High Court
against the award, but the writ petition was dismissed. And
now this appeal.
The appellant challenges the findings of the Labour
Court. It is contended that the settlement dated November
21, 1970 was binding on Sadhu Singh and it was not open to
him resile from it. Now Section 36 of the Act provides for
representation of the parties to a dispute. The workmen are
entitled by virtue of sub-section (1) to be represented in a
proceeding under the Act by a member of the executive or
other office bearer of a registered trade union of which
they are members or of a federation of trade unions to which
that trade union is affiliated, and where the workman is not
a member of any trade union, he can be represented by a
member of the executive or other office bearer of a trade
union connected with, or by any other workman employed in,
the industry in which the workman is employed. It is not
obligatory, however, that a workman who is a Party to
dispute must be represented by another. He may participate
in the proceeding himself. Where conciliation proceedings
are taken and a settlement is reached, it is a valid
settlement and binding on the parties even if the workmen
who are party to the dispute participate in the
772
proceedings personally and are not represented by any of the
persons mentioned in s. 36(1). That is what happened here.
The evidence shows that the individual workmen negotiated
the settlement themselves and individually signed the
memorandum off settlement. By executing a memorandum they
bound themselves by the terms of the settlement. In the
present case, however, while several workmen signed the
memorandum of settlement on 21st November, 1970, Sadhu Singh
did not. It is also established that Sadhu Singh did not
authorise any of the other workmen to sign the memorandum on
his behalf. And what is of importance is that, as found by
the Labour Court, the demand that the dismissal of Sadhu
Singh be set aside and that he should be reinstated was
never included in the charter of demands of the workmen
which led to the conciliation proceedings, and those
proceedings did not involve the consideration of such a
demand. According to the Labour Court, that was the admitted
position, Consequently, the settlement of 21st November,
1970 can on no account be understood as covering and
concluding the demand for recalling the order dismissing
Sadhu Singh. In the circumstances, it was open to Sadhu
Singh to assail his dismissal from service and to contend
that the settlement of 21st November, 1970 did not bind him.
The Labour Court was right in adjudicating on the propriety
of his dismissal and, having found that the dismissal was
not justified, in granting relief.
It is submitted that notice of the domestic inquiry was
duly effected on Sadhu Singh and the finding of the Labour
Court to the contrary is erroneous. Plainly, the question
turns on the evidence on the record and we see no reason why
the finding of the Labour Court should not be accepted.
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Having reached the conclusion that the domestic inquiry, in
the circumstances, was improper it was open to the Labour
Court to enter into the dispute on its merits and pronounce
its award. The finding that Sadhu Singh was ill and could
not be said to have instigated or participated in the strike
on August 27, 1970 is a finding of fact which proceeds from
the material on the record. We are not satisfied that the
finding should be disturbed.
Considerable reliance was placed by the appellant on
the document said to have been executed by the workman
containing the assurance that he would be of good behaviour
and, it is submitted.
773
that after executing the document Sadhu Singh went back on
the assurance and set the strike in motion. We see no force
in the submission. The evidence led by the management
attempts to show specifically that Sadhu Singh instigated
the strike at 10 O’clock in the morning on August 27, 1970.
It would not be unreasonable to hold that the declaration of
assurance was executed subsequently. It was an assurance
accepted by the management, and, therefore, there is no
reason why the management should have insisted on initiating
disciplinary proceedings thereafter against the workman.
In the result, the appeal is dismissed with costs to
the second respondent, which we assess at Rs. 2,000. The
appellant has deposited that sum pursuant to the order of
this Court dated April 30, 1974, and it is open to the
second respondent to withdraw the money.
V. D. K. Appeal dismissed.
774