R.M. Lodha, J.
1. This Letters Patent Appeal was admitted by the Division Bench of this Court on June 22, 1994 by the following order:
CORAM : H.H. KANTHARJA and A.P. SHAH, JJ:
Appellant Nos. 1 and 2 given an undertaking to this Court to reinstate the 1st respondent in his original position effective from tomorrow, June 23, 1994 and pay him 50% of the back wages within one week from today. The appeal is admitted. Appellant No. 2 shall file the undertaking in this Court in the course of the day. The undertaking is accepted. Certified copy expedited.
June 22, 1994.
2. It appears that present respondent No. 1 took out a precise on August 20, 2001, Para 6 of which reads thus:
'6. However, when the Appeal came up for final hearing before Their Lordships The Hon'ble Mr. Justice PALSHIKAR and The Hon'ble Mr. Justice VAZIFDAR on August 14, 2001 the Appellants sought to contend that the Appeal was admitted in respect of the entire issue of reinstatement and back wages, while the Respondents sought to contend that the Appeal was now confined to 50% back wages only. After hearing the parties for some time on this issue, the same was adjourned for a period of two weeks to enable the Respondent to seek clarification from the Original Bench as to whether the appeal is admitted only for 50% back wages or for all the issues.'
3. On the precise the Hon'ble Chief Justice ordered this appeal to be posted before the Bench presided over by A.P. SHAH and accordingly, the matter came up before the Bench of A.P. SHAH and V.C. DAGA, JJ. on October 22, 2001. The Division Bench of A.P. SHAH and V.C. DAGA, JJ. on October 22, 2001 passed the following order:
'Heard the learned counsel.
It is clear from the order dated June 22, 1994 that the appeal was admitted only with respect to the claim for back wages and 50% back wages were directed to be paid at the time of admission and we are informed that the said amount has been paid to the respondent. The only dispute now remains is with regard to the balance of 50% back wages.
Put up for final hearing before the regular Court.
The parties and the authorities to act on the ordinary copy of this order duly authenticated by the personal secretary of this Court.'
4. The appeal has now come up for hearing before us. Mr. Naik, learned counsel for the appellant urged that though the only dispute that remains in appeal is with regard to 50% back wages but for consideration of this aspect, the matter shall have to be heard on merits and accordingly, he raised three contentions: (i) In the complaint filed by complainant-respondent No. 1 substantially based on the allegation that termination of his service is in reality of dismissal for misconduct of an illusory and non-existent ground and he has been visited with a shockingly disproportionate punishment, the issue of retrenchment could not have been examined as a plea of retrenchment is mutually exclusively to the plea of dismissal and complaint was, thus, liable to be dismissed as not maintainable. In this regard Mr. Naik relied upon the Division Bench judgment of Delhi High Court in Lachman Das and Anr. v. Indian Express Newspapers (Bombay) Pvt. Ltd. and Anr. 1977 LIC 823; (ii) that the complainant was retrenched in good faith and departure of rule 'last come first go' was for valid and justified grounds. According to Mr. Naik this is also permitted under Section 25-G of Industrial Disputes Act. In this connection Mr. Naik relied upon the judgment of the Apex Court in Swadesamitran Ltd. v. Their Workmen : (1960)ILLJ504SC ; and (iii) that the learned single Judge seriously erred in holding that the agreement dated February 7, 1986 entered into between the employer-company and head office employees Association (recognised union) was not valid and binding agreement upon the complainant-respondent No. 1. In support of his contention, Mr. Naik relied upon the judgment of the Apex Court in Workmen of Hindustan Lever Ltd. and Ors. v. Management of Hindustan Lever Limited, : (1984)ILLJ388SC and the judgment of Allahabad High Court in Raghavendra Mathur v. Allahabad Bank and Ors., : (1990)ILLJ273All .
5. Mr. C.U. Singh, learned counsel appearing for the first respondent, on the other hand, supported the judgment of the learned single Judge and submitted that the order passed by the learned single Judge is in accordance with law and on the basis of available evidence and therefore, no case for interference is made out.
6. We heard the learned counsel for parties at quite some length and perused the available material. The first respondent herein (for short the complainant) filed a complaint in the Labour Court alleging unfair labour practices against the present appellants (for short first appellant-company to be referred as employer) under Item Nos. 1(a), (b), (d), (f), (g), 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short MRTU & PULP Act). The complainant stated in the complaint that he was a qualified, accountant and or about May 15, 1979 he received the interview call for the post of Accounts Assistant in the Accounts Department of the first appellant company. Having passed through the interviews, he was appointed as Accounts Assistant vide appointment order dated July 5, 1979 by the employer. The complainant submitted that under the appointment order he was not liable to be transferred to any company subsequently set up by Tatas. The complainant worked as Assistant' Accountant in the Accounts Department from the year 1979 to 1982. In the year 1982, the complainant was transferred to P.F. Section of the company and then in the year 1984 he was transferred to the Share Department. It is complainant's case that somewhere in the year 1985 he came to know from some reports that his services were likely to be transferred to other company viz., Tata Share Registry Private Limited along with other members of the staff working in the Central Share Department and on the basis of the said report he made a representation to the Director of Finance on December 31, 1985 expressing his disinclination to join the new company. It is the complainant's case that on June 30, 1986 he was informed by the Company Secretary that Central Share Department of the employer-company has been closed and the work of handling share registry has been entrusted to the new company called Tata Share Registry Private Ltd. and the said new company had agreed to provide employment to the complainant. The complainant was also informed that he would be paid lumpsum amount in consideration of forgoing employment with the employer company. On February 7, 1986, the complainant replied to the said letter dated January 30, 1986 and informed his unwillingness to accept the offer. The complainant declined to resign from the employer-company and accept the new employment offered to him. It is complainant's case that by letter dated February 12, 1986 he put on record that he was really threatened for termination of service in the event of his refusal to accept the new offer. In response to his letter dated February 12, 1986, the Company Secretary wrote a letter to him on February 19, 1986. It was stated in the said letter that the Central Share Department has been closed and that 16 other employees like the complainant working in the Central Share Department have been rendered surplus consequent to its closure but the 16 other employees have agreed to accept the employment in the new Tata Share Registry Pvt. Ltd. on the terms and conditions agreed upon between them. Out of that two employees in the meantime opted for retirement. However, by letter dated March 10, 1986 the employer-company terminated the complainant's service. Aggrieved by that the complainant filed complaint as aforestated. The complaint was contested by the employer-company. The Labour Court after recording evidence, dismissed the complaint by judgment and order dated August 27, 1991. Aggrieved by the said judgment and order passed by the Labour Court, the complainant filed Writ Petition No. 4854 of 1991. The said complaint, after hearing the learned counsel for the parties, has been allowed by the learned single Judge by his judgment and order dated February 14/15, 1994. Dissatisfied by the judgment and order of the learned single Judge, the employer-company has come up in appeal.
7. In the complaint, the complainant narrated the unfair labour practices in which the employer-company was illegally engaged and continued to engage and set up diverse grounds challenging his termination dated March 10, 1986 inter alia on the ground of unlawful retrenchment, non-compliance of provisions of Section 25-G of Industrial Disputes Act and Rule 61 of the Rules framed thereunder, retrenchment on false grounds and dismissal for misconduct on illusory and non-existent grounds and that he has been visited shockingly and disproportionate punishment. After reading the complaint carefully and meaningfully, that is how pleadings should be construed and not formally, we find it difficult to appreciate the first contention of Mr. Naik that the complaint was not maintainable as complainant had set up specific case of his dismissal for misconduct on an illusory and non- existent ground and was visited with shockingly disproportionate punishment and, therefore complainant cannot challenge his termination on the ground of retrenchment. Many of the grounds set up by the complainant overlap; some of which are obviously in alternative. We do not find any legal bar in the complainant challenging his termination by way of discharge which includes retrenchment and in the alternative also without specifically saying so on the ground of dismissal under various clauses of item 1 of Schedule IV of MRTU and PULP Act. There is no principle much less legal sound principle in ousting the complainant who had filed the complaint in relation to unfair labour practice under MRTU & PULP Act on various grounds for his relief some of which may overlap and few of which may be different from each other. It is well-settled principle that pleadings must be read meaningfully and construed liberally and not in formal or technical manner to find faults. Merely because in the averments made in the complaint, the expression 'alternatively' has not been used while setting up grounds of unfair labour practice, no inference can be drawn that if one ground has been set up by the complainant, other grounds stand excluded and cannot be taken into consideration. The principle which is sought to be canvassed by the learned counsel for the employer-company that in the complaint where the complainant has set up case of dismissal on illusory and non-existent ground: such complainant cannot be permitted to raise the plea of unlawful retrenchment, if accepted, would really be travesty of justice as that may amount to throwing out the meritorious case on technical ground by reading the pleadings in the complaint in formal and hyper-technical manner. The judgment of the Division Bench of Delhi High Court relied upon by the learned counsel for appellant cannot be said to be laying down the proposition canvassed by the learned counsel for the appellant nor can be applied to the facts of the present case which would be clear from paras 5 to 8 of the report in Lachman Das (supra) which reads thus:
'5. In our view the word 'illegal' has a very wide significance. Considered in isolation, it is vague; for the termination of employment may be illegal for different and even conflicting reasons. Therefore, the meaning of the word 'illegal' has to be understood in the context of the allegations of facts constituting the particular kind of illegality pleaded. It would follow that the word 'illegal' so construed according to context would not include some meaning of illegality which was not pleaded and which was contrary to the pleading. The definition of 'retrenchment' in Section 2(oo) includes every termination excepting a termination inflicted as a punishment by way of disciplinary action and some other kinds of termination. The allegations of the petitioners that they were victimised because of their union activities and participation in the strike meant that they were really punished by the employer by way of disciplinary action. Therefore the meaning of termination of services alleged by the petitioners was outside the definition of 'retrenchment'. Indeed the termination by way of disciplinary action as a punishment is directly conflicting with termination by way of retrenchment. The former is by way of punishment while the latter is in the interest of economy or because the employer did not need the services of the petitioners who had become surplus after the contract for the printing of the American Reporter which had been enjoyed by the employer came to an end.
6. The question, therefore, is whether the Additional Labour Court could have been expected to consider whether the termination was bad because it was by way of retrenchment even though the pleading by the petitioners was that the termination was bad because of mala fides and unfair labour practice.
7. The law is well-settled that no amount of evidence can be looked upon as a plea which was never put forward. Siddik Mahomed Shah v. Mt. Saran . The reason is that a party cannot be allowed to benefit himself from such evidence which was at a variance with his pleading. If he were allowed to do so, the opposite party would be taken by surprise, Nagubai Ammal v. B. Shama Rao : [1956]1SCR451 . Even if therefore the petitioners themselves had wanted to turn round and ask the Additional Labour Court to hold that the termination of their services was by way of retrenchment, they could not have been allowed to do so. A fortiori, the Additional Labour Court of its own accord could not have so held in the absence of such a stand being taken by the petitioners.
8. The next question is whether the petitioners can be allowed to take up this stand in the writ petition. There are two objections to their doing so. Firstly, the relief sought by the petitioners is in the nature of certiorari. It has to be based on the record of the Additional Labour Court. Since the question of retrenchment did not figure in the said record, it would be unfair to the Additional Labour Court that its award should be quashed on a ground which had not been raised before it. Secondly the learned counsel for the petitioners before us prays that the termination should not only be quashed but the petitioners should also be reinstated with entitlement to receive back wages from the date of the termination. They thus want to be paid their wages for more than four years though during that period they did not work for the employer. Their position in this respect is similar to those petitioners who approach this Court under Article 226 too late without justification for delay. Such a delay on the part of a Civil servant has been held by the Supreme Court to be fatal to the success of his writ petition because of his attempt to get arrears of salary for the period for which he has not worked for the employer, Kamni Kumar v. State of West Bengal, : [1973]1SCR718 . The delay on the part of the petitioners to raise the question of retrenchment from 1972 to 1976 cannot be condoned because they are thereby seeking to get an unfair advantage of being paid for four years without having done any work for the employer.'
8. The aforesaid observations were made by the Division Bench of Delhi High Court while dealing with the question though the pleading was that termination was bad because of mala fides and unfair labour practices whether illegality of termination could be considered by way of retrenchment. What the Division Bench observed was that the termination by way of disciplinary action as a punishment is directly in conflict with termination by way of retrenchment. In this observation, it cannot be read that it is not open to the complainant to plead alternate grounds in challenging his termination or that the complainant cannot challenge his termination being a case of unlawful retrenchment or in the alternative wrongful dismissal. We, therefore, overrule the first contention of the learned counsel for the appellant.
9. Now adverting to the second contention raised by the learned counsel for the appellant, we may straightaway say that the said contention also has no merit. There appears to be no dispute that the complainant joined his service as Accounts Assistant in the Accounts department of the employer-company in the month of July, 1979 as its employee. It was only in the year 1984 that he was transferred to the Central Share Department or the employer-company where he worked for about 15/16 months before his services were terminated. Admittedly, the petitioner was not junior-most in the cadre of Accounts Assistant in the employer-company. If at all on closure of Central Share Department the complainant was rendered surplus, by applying the principle of 'last come first go', the junior-most from amongst Accounts Assistants ought to have been retrenched. That was not done and complainant was retrenched. The retrenchment of the complainant who is not junior-most is sought to be justified by the learned counsel for employer on two grounds viz. (1) that the complainant was at the time of his retrenchment was working in the Central Share Department of the Company and the said Department having been closed, though all other employees agreed to accept the job in new company but the complainant refused to do so, and, therefore, services of the complainant being sole employee in that department were validly terminated; and (ii) upon closure of the Central Share Department where the complainant was working, he was rendered surplus and somebody had to be retrenched but as the complainant was working in the Central Share Department itself, it was thought fit to terminate the services of the complainant. We find it difficult to hold that the aforestated reasons justify departure from Section 25-G of Industrial Disputes Act. It is true that departure from the rule 'last come, first go' under Section 25-G is permissible on valid and justifiable grounds but the grounds, however, suggested by the employer-company can hardly be held to be valid and justifiable ground for such departure. The permissible grounds for departure from 'last come., first go' rule have to be something pertaining to junior employee being highly efficient and because of his efficiency does not deserve to be retrenched, though junior, or there was recorded history of the senior workman indicating his inefficiency, unreliability or habitual irregularity or some other ground akin to it. This is what the Apex Court observed in Swadesamitran Ltd. v. Their Workmen : (1960)ILLJ504SC :
'It may be conceded that if a case for retrenchment is made out it would normally be for the employer to decide which of the employees should be retrenched: but there can be no doubt that the ordinary industrial rule of retrenchment is 'last come, first go,' and where other things are equal, this rule has to be followed by the employer in effecting retrenchment. We must, however, add that when it is stated that other things being equal the rule 'last come, first go' must be applied, it is not intended to deny freedom to the employer to depart from the said rule for sufficient and valid reasons. The employer may take into account considerations of efficiency and trust worthy character of the employees, and if he is satisfied that a person with a long service is inefficient, unreliable or habitually irregular in the discharge of his duties, it would be open to him to retrench his services while retaining in his employment employees who are more efficient, reliable and regular though they may be junior in service to the retrenched workman. Normally, where the rule is thus departed from, there should be reliable evidence preferably in the recorded history of the workmen concerned showing their inefficiency, unreliability or habitual irregularity.'
10. We, accordingly, have no hesitation in holding that there was no valid and justifiable ground for the employer-company for departure from 'last come, first go' rule in the present case and the finding recorded by the learned single Judge that employer committed unfair labour practice under Item 1(d) of Schedule IV of MRTU & PULP Act cannot be said to suffer from any infirmity.
11. In so far as the last contention raised by learned counsel for employer-company that there was valid agreement (settlement) entered into between the recognised union and the employer- company and the complainant being member of the recognised union was bound by the said settlement and having not accepted the said settlement and despite the complainant having been offered employment in the other company, the termination of complainant's services cannot be faulted is concerned, we do not find any merit in this contention as well. Mr. Naik submitted that agreement dated February 7, 1986 having been acted upon by the Union and the employer-company, even if it was not in proper proforma and the procedure as per rules was not followed, was still binding upon the complainant. According to Mr. Naik, the learned single Judge was not justified in holding that the agreement was not as per the mandatory requirement of law and therefore, not binding,
12. The agreement which has been relied upon by the employer- company having been entered into with the recognised union is dated February 7, 1986 and it is in the following form:
'HEAD OFFICE EMPLOYEES
ASSOCIATION'
(Registration No. By-II-7040)
M-1-A, TATA HOUSING CENTRE,
LALLUBHAI, PARK ROAD,
ANDHERI WEST, BOMBAY 400058.
February 7, 1986
The Tata Iron & Steel Co. Ltd.,
Head Office,
Bombay House,
Bombay 400 023.
Dear Sirs,
We have had a series of discussions with Mr. K.D. Patel, Director of Finance and; Mr. Y.M. Bhangle, Company Secretary in the matter arising out of the decision of Tisco and other companies to place their share registry business with a newly formed company viz. Tata Share Registry Pvt. Ltd. and the closing down of the Tata Central Share Department as a consequence thereof. Tisco had 14 employees who were deputed to the Tata Central Share Department and therefore the question came up as to what, alternative arrangements were to be made to accommodate the said 14 employees. We were informed that there were no suitable jobs or vacancies in the Head Office to offer to these 14 employees working in the Share Department and therefore it was arranged with the Tata Share Registry that these employees will be employed with Tata Share Registry, providing full protection to their cash emoluments drawn in Tisco. In addition, Tata Share Registry undertook to pay every employee joining its services cash compensation equivalent to 12 months gross salary i.e. Basic + D.A. + Service Allowance as drawn in Tisco on January 31, 1986.
In view of the circumstances explained by the Company through its above-named officials, the employees concerned agreed to take up employment in Tata Share Registry in consideration of certain additional assurances given by the Tisco Management. These assurances given to the employees and the representatives of the Association in the course of discussions are recorded below; -
(1) If due to unforeseen circumstances in the future, Tisco is compelled to discontinue its contract with Tata Share Registry and decides to set up its own Share Department, the employees who are in the present circumstances agreeing to join Tata Share Registry will be reverted to Tisco's services.
(2) Those employees who have already been sanctioned loan for Housing under the specially liberalised scheme of Housing Loan will still be able to avail of the loan through Tata Share Registry at the rate of interest of 4% p.a. with corresponding help from Tisco to Tata Share Registry. In the event of the current Housing Project in Andheri (East) being replaced by a Housing Project at an alternate site, these employees will also be given the Housing Loan under the aforesaid liberalised scheme of Housing Loan.
(3) Employees residing in the Tisco residential quarters will be allowed to continue to occupy the said quarters and the rent payable therefor will not be in excess of what Tisco employees would have to pay to occupy similar quarters.
(4) Suitable arrangements will be made by Tisco with Tata Share Registry to enable the employees to avail of a part of their accumulated leave in Tisco even after joining Tata Share Registry as otherwise they will have to take leave without pay in the new Company.
Yours faithfully,
sd/- sd/-
(R.R. Shastri)(K.P. Venkataramanan)
Hon. General Secretary Vice-President
Sd/-
(G. Jayagopalan Iyer) Special Representative of the Share Department Employees.'
13. There is no dispute before us that the so-called agreement is not in the form XVI nor is signed by both the parties nor its copies have been sent to the authorities mentioned in Rule 62 of Industrial Disputes (Bombay) Rules, 1957. Apparently the requirement contained in Clause 2(p) of the Industrial Disputes Act and Rule 62 of aforesaid Rules have not been, complied with. In Workmen of Delhi Cloth and General Mills Ltd. v. Delhi Cloth and General Mills Ltd. : (1972)ILLJ99SC , the Apex Court upon consideration of Section 2(p), Section 18(1), Section 38 of Industrial Disputes Act and Rule 58 of Industrial Disputes (Central) Rules observed that the settlement being one arrived at otherwise than in the course of conciliation proceedings could be binding on the member workmen only if the statutory provisions of the Industrial Disputes Act and the rules prescribed thereunder are complied therewith. The Supreme Court further held that if the provisions of Rule 58(4) identical to Rule 62 of Industrial Disputes (Bombay) Rules have not been complied with, such settlement would not be binding on the concerned Workman.
14. Confronted with the judgment of the Apex Court in Delhi Cloth and General Mills Ltd. (supra), Mr. Naik placed reliance upon the judgment of the Apex Court in Hindustan Lever Limited (supra), and also on Allahabad High Court Judgment in Raghavendra Mathur (supra). In Hindustan Lever Ltd. the Apex Court with reference to the communication entered into between the employer and union which was treated as a concluded agreement by both the parties for more than a decade, the Apex Court held that in the backdrop of such agreement which was treated as concluded by both the parties on numerous occasions, the employer cannot be permitted to resile therefrom. In para 10 of the report, the Apex Court held thus : (1984)ILLJ388SC :
'10. At the outset, we must record our unhappiness on the attitude adopted by the employer in contending as late as 1981 that the three communications Exhibits W-2, W-3 and W-4 did not constitute a concluded agreement between the parties with respect to the points settled therein and the Tribunal ignoring the history and repeated advantage taken by the employer of this concluded agreement on numerous occasions accepted the contention of the employer. It is therefore necessary first to point out how from 1957 till as late as 1966 and even thereafter the employer non-suited the union, if that is a proper term, by setting up the very agreement which now the employer wants to urge that it is not a concluded agreement. The three important clauses of the agreement emerging from the correspondence relevant to the present dispute are that (i) the Hindustan Lever Mazdoor Sabha was recognised by the employer as a representative union for all Sections of field force all over India in the employment of the employer and (ii) the union agreed to bring all matters relating to wages/salaries and terms and conditions of service on an All-India basis and not on regional basis as far as field force is concerned and (iii) that in future disputes, the employer will not contest issue about member of the field force being workmen but shall contest issues only on their merits in the same way as the employer would do for other employees. Freed from technical jargon, the employer agreed and undertook not to contest in any industrial dispute the status of the field force as not being workman within the meaning of the expression in the Act and that reference, if any, would be contested on the merits of the industrial dispute in respect of which reference is made to the Industrial Tribunal. The outcome of the agreement would be that if a dispute of an all-India nature in respect of the field force is raised at a regional level, founding its contention on one of the terms of the agreement, the employer would be in a position to get any regional reference rejected on the ground that such dispute of an all-India nature in respect of the field force can be raised at Bombay only and within the jurisdiction of the Industrial Tribunal at Bombay only. There is no dispute between the parties that if there is an agreement such would be the outcome of it. This is not only not in dispute but it is conceded that a settlement was arrived at in respect of industrial disputes between the employer and the union concerning the field force including salesman in 1957, 1959 and 1964. An avernment to this effect is made in paragraph H of the petition for special leave and Annexure 5 was annexed to the petition which purports to be the settlement dated December 22, 1964. It is signed by Shri C.J. Mahimkar, Joint Personnel Manager on behalf of the employer and Shri A.K. Basu, General Secretary of the Union, at the relevant time. The various industrial disputes in respect of which settlement is arrived at were between the employer and the workmen of the company who were the members of the field force (salesmen, sales supervisors, etc.) employed in any part of India. This settlement was arrived at under the Industrial Disputes Act and was registered according to the requirements of the Act. This implies that the status of the salesman as being workman within the; meaning of the expression of the Act was not only not disputed but specifically conceded and that must obviously be pursuant to the subsisting agreement. This is however, an inference so it is better now to move on to adjudication and award by a forum with jurisdiction to decide the point.
15. The aforesaid observations made by the Apex Court in Hindustan Lever Ltd. cannot be applied in the facts and circumstances of the present case. Similarly, the judgment of Allahabad High Court in Raghavendra Mathur also does not help the employer-company at all. In para 7 of Raghavendra Mathur, the Division Bench of Allahabad High Court held thus at : (1990)ILLJ273All :
'7. Sub-section (1) of Section 18 of the Industrial Disputes Act which was introduced by the Amending Act of 1956 was enacted to remedy a defect in the existing law. Prior to the amendment, there was no provision to make such settlements binding even on the parties thereto, with the result that the workmen notwithstanding such a settlement could raise an industrial dispute on the identical matter agreed upon by their union. By the same amending Act, the definition of 'settlement' was also amended, as the original definition contemplated only a settlement arrived at in the course of conciliation proceedings. This sub-section provides that a settlement arrived at by the agreement between the employer and the workmen 'otherwise than in the course of conciliation proceedings', as is apparent from the language of this provision, shall be binding only 'on the parties to the agreement'. Normally, it is the union or the representative of the employees who enter into agreement with the employer. All the employees do not, as a matter of fact, become parties to the agreement. But the settlement signed by such representatives binds all those whom they represent. Therefore, the terms of the settlement become a part of the contract of employment of each individual workman represented by such representative. In the instant case none of the parties have disputed or challenged the settlement. Hence even if the said settlement is not in accordance with the prescribed form as contemplated under Rule 58 of the Industrial Disputes (Central) Rules, 1957, it does not suffer from any defect. In Workmen of Hindustan Lever Ltd. v. Hindustan Lever Ltd. : (1984)ILLJ388SC , Hon'ble DESAI, J. ruled 'the Court by interpretative process must strive to reduce the field of conflict and expand the area of agreement and show its preference for upholding agreements sanctified by mutuality and consensus in larger public interest, namely, to eschew industrial strife, confrontation and consequent wastage.'
16. It would be seen from the aforesaid observations, made by Allahabad High Court that at no point of time the parties to the agreement disputed or challenged it on any ground. The Allahabad High Court further observed that even otherwise, the settlement did not suffer from any defect. Thus, the judgment of Allahabad High Court in Raghavendra Mathur is of no help to the employer- company.
17. Even if we assume that the agreementdated February 7, 1986 is a legally bindingagreement under Section 2(p) and Section 18of the Industrial Disputes Act, it is apparentfrom the said agreement dated February 7,1986 that the said agreement was entered intowith the recognised union only for the purposesof 14 employees which did not include thecomplainant who were working in the CentralShare Department. The complainant was notincluded in the 14 employees referred to in theagreement dated February 7, 1986 would beclear from the subsequent letter dated February19, 1986 wherein it was informed to thecomplainant thus:
'2. As already conveyed to you by our letter No. C/461 dated January 30, 1986, the Tata Central Share Department where you have been working has been closed down and the work of handing the share registry has now been taken over by another company called Tata Share Registry Private Limited. Like yourself, there were 16 other employees working in the erstwhile Tata Central Share Department who consequent to the said closure were rendered surplus and therefore, the question of their deployment arose. We, therefore, took up the issue with the Tata Share Registry Private Limited and persuaded them to employ all employees: including yourself in their company. In the meantime, two of the employees opted for retirement. Letters offering employment as agreed were, therefore, issued by the Tata Share Registry to all the remaining 14, employees specifying therein the terms and conditions of such employment which are self-explanatory. By one of such terms they have also agreed to treat the past service of all the employees concerned as continuous in their company for all purposes. In addition, they have also offered certain amount by way of compensation to each employee in consideration of loss of certain benefits. It may be mentioned here that this matter was discussed with the employees together with their representative before the offer as above was made. The offer of employment as above made by the Tata Share Registry Pvt. Ltd. has been accepted by all other concerned employees. However, you are the only employee who has not yet accepted the said offer, but we are sure that you will do so without any further delay.'
18. No doubt is left from the aforesaid communication that the 14 employees referred to in the agreement dated February 7, 1986 were other than the present complainant and therefore, even otherwise the complainant could not have been made bound by the agreement dated February 7, 1986 said to have been entered into between the recognised union and employer-company.
19. All in all, we find ourselves in agreement with the view taken by learned single Judge and we do not find it a fit case for interference in our Letters Patent Jurisdiction.
20. Before we conclude, we observe that the only issue in the Letters Patent Appeal was with regard to the balance of 50% of back wages as the complainant was already reinstated and paid 50% of back wages for the reasons already indicated by us in the beginning of this judgment but as the learned counsel for employer-company submitted that for consideration of the issue whether complainant is entitled to the balance of 50% of back wages, we are required to examine the contentions raised, we dealt with the aforesaid contentions, though it was hardly necessary.
21. In the result, Letters Patent Appeal is dismissed with no order as to costs.
22. Four weeks time is granted to the employer-company to pay balance 50% back wages to the complainant failing which the employer-company shall be liable to pay interest at the rate of 9% per annum on the said amount from the date it became due till payment is made.
23. Certified copy expedited.