ORDER
Ajit Kumar Sinha, J.
1. The present writ petition has been preferred for the following reliefs:
(A) For issuance of an appropriate writ, order or direction in the nature of certiorari for quashing the order dated 18.9.2004, passed by the learned Industrial Tribunal. Ranchi in Reference Case No. 1/2002 whereby and whereunder the petitioner's application for disposal of the reference and for passing of an Award in terms of the settlement dated 23.5.2004 has been rejected in grossly illegal and arbitrary manner.
(B) For issuance of an appropriate writ, order or direction declaring that in view of the settlement dated 23.5.2004 entered between the petitioner Management and the representative and majority Trade Union TATA Workers' Union which is the only recognized trade union and is the sole bargaining agent of the petitioner's establishment, whereby and whereunder the grievances and the disputes relating to the Temporary Employees concerning their absorption as permanent employees, wage settlement etc. has been amicably resolved during the conciliation proceeding and an agreement/settlement was arrived at during the conciliation proceeding signed by the majority representative Trade Union i.e. TATA Workers Union, the petitioner management and the Labour Commissioner-cum-Conciliation Officer, Government of Jharkhand, thus being a settlement under Section 18(3) of the Industrial Disputes Act, 1947 arrived at during the conciliation proceeding has become binding on all the parties and even on dissenting minority Unions or dissenting minority workmen.
(C) For issuance of such other writ, order or direction to hold and declare that in view of the settlement dated 23.5.2004, all the disputes in relation to the Temporary Employees concerning their demand for absorption as permanent employees stands resolved and therefore, no dispute survives or exists for adjudication in the present Reference No. 1 of 2002 pending before the Industrial Tribunal, Ranchi and the said settlement becomes binding on all the workmen including the concerned workmen of Reference Case No. 1/2002. Accordingly, the learned Industrial Tribunal ought to have allowed the petition dated 12.7.2004 filed by the Management by passing an Award in terms of the settlement dated 23.5.2004.
(D) For issuance of an appropriate writ, order or direction in the nature of certiorari for quashing the reference dated 23.11,2001 now numbered as Reference 1/2002 pending before the Industrial Tribunal, Ranchi as not maintainable and without jurisdiction.
2. The issue arises from the same settlement dated 23.5.2004 and the question of law being common both the Writ Petitions are being disposed of by a common order.
3. The facts, in brief, in W.P. (L) No. 5872 of 2004 is set out as under:
The petitioner is a registered Company under the Indian Companies Act and primarily engaged in the business of manufacturing of Steel and its ancillary purposes.
The concerned workmen about 109 in number raised a demand before the petitioner Company for regularization and permanent employment in M/s. TISCO vide their letter of demand dated 30.5.1998. The said letter of demand was instituted by the following five authorized representatives:
(i) Anil Kumar Singh,
(ii) Akhilesh Kumar Pandey,
(iii) Ajay Kumar Jha,
(iv) Silanath Sharma,
(v) D.K. Chakraborty.
It was inter alia stated by the concerned workmen in the letter of demand that they were employed as temporary employees who worked in the Company for the last several years for different spells of time but later on they were disengaged. It was also stated by them that most of them are the sons and wards of the permanent employees registered for employment in the Company as per the provisions of the Standing Orders of the Company and therefore, they made a demand with a copy thereof to the Deputy Labour Commissioner, Jamshedpur for initiation of conciliation proceedings under the Industrial Disputes Act.
The conciliation proceeding was initiated under Section 12 of the Industrial Disputes Act, 1947.
The petitioner also appeared before the Conciliation Officer and filed Its statement explaining therein that the temporary employees are engaged for specified period from out of pool of registered temporary employees maintained by the petitioner Company depending upon the vacancies and exigencies of work and they are engaged Intermittently on rotational basis amongst the pool of registered temporary employees purely on temporary basis and each time for specified period and after such period of engagement are over, these temporary employees are disengaged. Thereafter, such temporary employees have to wait for their further engagement depending upon any future requirement.
The conciliation, in view of the stand taken by the respective parties, failed and therefore, the failure report was sent and the matter was referred by adjudication before the Industrial Tribunal, Ranchi by making the reference in the following terms:
Whether 109 (one hundred and nine) temporary workmen of M/s. TISCO Limited, Jamshedpur as per Annexure-1 working for last many years are entitled to regularization of their services? If not what other relief they are entitled to
It appears that during the pendency of Reference a petition was filed by the petitioners on 12.6.2004 on behalf of the Management with a prayer to dispose of the instant Reference by making an Award in the light of the settlement dated 23.5.2004. The Petitioner Management stated that the Tata Industrial Steel Company Limited hereinafter referred to as TISCO have entered into a settlement with the exclusively registered and recognized Union in the name and style of tata workers union who has the same bargaining power with the TISCO, relating to service conditions including the rights of workers, their wages etc.
In the second W.P. (L) 5845 of 2004 filed by the same management (TISCO) there are 33 workmen and the petition dated 9.7.2004 to pass an award in terms of settlement dated 23.5.2004 was dismissed vide order dated 13.9.2004.
4. The learned Industrial Tribunal Ranchi in both the reference cases vide its impugned order and judgment dated 13.9.2004 and 18th September. 2004 held that the settlement dated 23.5.2004 was not binding on the concerned workmen and thus the Reference could not be disposed of at this stage in terms of the settlement dated 23.5.2004 and accordingly dismissed the petition filed by the petitioner Management. The aforesaid two impugned orders are sought to be challenged in the present writ petition,
5. The main contention raised by the counsel for the petitioner is, as to whether any dispute survives after entering into a settlement by the Management with the recognized Union on 23.5.2004 and could the, Reference proceed any further. It has also been argued that in view of Section 18(3) of the Industrial Disputes Act settlement arrived at in the course of conciliation proceeding becomes binding and enforceable on all the parties to the Industrial Disputes including all the workmen who were employed in the Establishment or were part of the Establishment. Shri Rajiv Ranjan, learned Counsel appearing on behalf of the petitioner has also argued that even though the reference has been made under Section 10(1)(d) but if a conciliation takes place resulting into a settlement between the Management and the recognized Union the same becomes binding on all the workmen of the Establishment and the presumption will be that it is just, fair and bona fide.
The next argument raised by the learned Counsel for the petitioner is that the issue with regard to maintainability of the reference cannot be decided by the Industrial Tribunal or the Labour Court and the said issue can only be decided by the High Court under Article 226 of the Constitution of India. It has also been argued that the concept of collective bargaining culminating into a settlement is enjoined in the Industrial Jurisprudence for maintaining peace and harmony for amicable resolution of employee's grievances in times of goodwill and the same has to be proceeded through adjudication.
In this regard, he has referred to and relied upon : (2000)ILLJ247SC , National Engineering Industries Limited v. State of Rajasthan and Ors. and in particular Para 24 which is quoted as under:
24. It will be thus seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal [sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference. A settlement of dispute between the parties themselves is to be preferred, where it could be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace than an award. Settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements it could be the subject-matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the Conciliation Officer must be fair and reasonable. A settlement which is sought to be impugned has to be scanned and scrutinized. Sub-sections (1) and (3) of Section 18 divide settlements into two categories, namely, (1) those arrived at outside the conciliation proceedings, and (2) those arrived at in the course of conciliation proceedings.
A settlement which belongs to the first category has a limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has an extended application since it is binding on all the parties to the industrial disputes, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. A settlement arrived at in the course of conciliation proceedings with a recognized majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. The recognized union having the majority of members is expected to protect the legitimate interest of the labour and enter into a settlement in the best interest of the labour. This is with the object to uphold the sanctity of settlement reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. When a settlement is arrived at during the conciliation proceedings it is binding on the members of the Workers' Union as laid down by Section 18(3)(d) of the Act. It would ipso facto bind all the existing workmen who are all parties to the industrial dispute and who may not be members of Unions that are signatories to such settlement under Section 12(3) of the Act. The Act is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace. 'This principle of industrial democracy is the bedrock of the Act,' as pointed out in the case of P. Virudhachalam v. Lotus Mills. In all these negotiations based on collective bargaining the Individual workman necessarily recedes to the background. Settlements will encompass all the disputes existing at the time of the settlement except those specifically left out.' He has also referred to and relied upon : AIR2006SC296 (Anz Grindlays Bank Ltd. v. Union of India and Ors.) paragraphs-9 and 13 and 2005 (Lab.) I.C. 1604 paragraphs-21 and 23. He has also referred to and relied upon 2004 (Lab.) I.C. 18 (Bom) Paragraphs-9 and 10 to support his contention.
6. Shri G.M. Mishra, learned Counsel appearing on behalf of respondent No. 4 has referred to para 7 of his counter affidavit which is quoted as under:
7. That the respondent No. 4 is alone competent to raise a demand of such a general nature and espouse the cause of the workmen for industrial adjudication. The respondent No. 4 is registered under the Trade Unions Act and is the sole bargaining Agent of the Employees of the Petitioner Company as it is the only Union existing which is recognized and representative Union for the purpose of espousing the cause of the employees of the Petitioner Company and for negotiation and settlement of the Industrial dispute and other issues as a result of collective bargaining. The respondent No. 4 is representing a vast majority of the concerned workers including temporary employees and individual worker and/or collection of 4 and 5 individual workers is/are not empowered or entitled to either raise a demand of general nature and/or negotiate or settle the same. This position has been firmly settled by the Apex Court.
The learned Counsel has further argued that the entire object of Industrial Disputes is to bring Industrial Peace and the endeavour will be to settle the disputes and it was in these background that the settlement was entered into by the Management and the recognized union and it should be binding on all the workers.
He has further contended that the order of the Industrial Tribunal does not deal with the real issue and has only decided the matter on peripheral issue. It has further been contended that in case if the workmen are aggrieved they have a remedy to challenge the settlement. He has also referred to and relied upon 2005 (3) (Lab.) I.C. 2295 (Bom).
7. The learned Counsel for respondent No. 3, supporting the Management, has submitted that the majority has agreed to settle the dispute and the settlement is legal and valid and it encompasses all the workmen.
8. The learned Counsel Shri Anoop Kumar Mehta. appearing for and on behalf of the contesting workmen has raised the following contentions for dismissing the writ petition itself.
The first and foremost contention raised by the learned Counsel appearing on behalf of the contesting workmen who in the present case are 33 in number is that they are not signatory to the settlement dated 23.5.2004 and the same cannot be enforceable or binding against them.
He has further referred to and relied upon the terms and conditions of the settlement and in particular Clause 1.3 as annexed at page 111 which is quoted as under:
1.3 Any such person who is otherwise eligible but is a party to any industrial dispute either pending before Labour Court/Tribunal or before the Conciliation Officer or before any other statutory authority shall be extended the benefit of one time financial package under this settlement only after he/she produces proper document(s) confirming his/ her unconditional dissociation/ withdrawal from the said dispute, subject to the satisfaction of the Co.
For the reason that the settlement itself was based on individual option to agree to the settlement unconditionally and once the workmen have not accepted or given any unconditional consent for the settlement they cannot be forced to agree to the settlement which is detrimental to them.
The second contention raised by the learned Counsel for the contesting workmen is that once the Reference has been made it pre-supposes that the conciliation has failed as contemplated in Section 12 of the Industrial Disputes Act and an Industrial Dispute is accordingly raised by way of Reference under Section 10(1)(d) which has to be adjudicated by the Tribunal on merits. The third contention raised is that a conciliation between the Management and a Union which is not connected with the present Industrial Disputes as referred to cannot be made applicable to the present workmen who are neither signatories to it nor have given any unconditional consent and thus he has also argued that TATA Workers Union was not even a party to the Industrial Dispute and the present Reference. To support his contention he has referred to and relied upon : (1978)IILLJ22SC and : (2005)ILLJ1117SC .
The learned Counsel has further referred to an relied upon : (1996)IILLJ125SC for the proposition that the preliminary issue or objection raised has to be decided by the Industrial Tribunal and the High Court should not stall or delay the same and the fact that the contesting workmen are not even members of the Union the same cannot be fastened against them.
9. I have considered the rival contention and pleadings raised by the counsel for the respective parties and before dealing with the matter on merits it would be relevant to quote Section 2(e) which defines Conciliation.
2(e). 'Conciliation proceeding' means any proceeding held by a conciliation officer or Board under this Act;
Section 2(p) defines settlement, which is quoted as under:
2(p). 'Settlement' means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise then in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorized in this behalf by the appropriate Government and the conciliation officer;
Section 12 and Section 18 of the Industrial Dispute Act is being quoted as under:
Section 12. Duties of Conciliation Officer-(1) Where any industrial dispute exists or is apprehended, the conciliation officer may, of where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner.
(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the conciliation officer shall send a report thereof to the appropriate Government or an officer authorized in this behalf by the appropriate Government together with, a memorandum of the settlement signed by the parties to the dispute.
(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full settlement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration of the report referred to in Sub-section (4}, the appropriate Government is satisfied that there is a case for reference to a Board, labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference. it shall record and communicate to the parties concerned its reasons therefor.
(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government.
provided that, subject to the approval of the conciliation officer, the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute.
18. Persons on whom settlements and Awards are binding.-(1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.
(2) Subject to the provisions of Sub-section (3), an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration.
(3) A settlement arrived at in the course of conciliation proceedings under this Act or an arbitrator award in a case where a notification has been issued under Sub-section (3-A) of Section 10-A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on:
(a) all parties to the industrial dispute:
(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator. Labour Court, Tribunal or National Tribunal, as the case may be. records the opinion that they were so summoned without proper cause;
(c) where a party referred to in Clause (a) or Clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;
(d) where a party referred to in Clause (a) or Clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.
10. The Hon'ble Supreme Court in National Engineering Case : (2000)ILLJ247SC which has been referred to and relied upon by the counsel for the petitioner held that a settlement in the course of conciliation proceeding under Section 18(3) of the Industrial Disputes Act is enforceable and binding even against a minority of the workmen who are opposing the collective bargaining power of the recognized Union with the Management. However, on reading/analyzing the ratio of the judgment (supra) it will be clear that settlement arrived at under Section 18(1) of the Industrial Disputes Act refers to settlement arrived outside the conciliation proceedings and the same has a limited application and it binds only the parties to the agreement.
Secondly the conciliation proceeding and the settlement which is being referred to and relied upon to close the Industrial Dispute based on the Reference was entered into in a different proceeding not connected with this and the admitted fact remains that the present workmen were not even signatory nor member of the so called recognized Union and thus the same cannot be made binding against them even as per Section 2(p) of the Industrial Disputes Act. It will also be proper to mention that the appropriate Government referred the Industrial Disputes between the Management of M/s. TISCO Ltd., Jamshedpur and their Workmen represented by five authorized temporary workmen under Section 10(1)(d) of the Industrial Disputes Act for adjudication and the settlement dated 23.5.2004 was not arrived at during conciliation proceeding under the provision of Section 12 of the Act and rather the conciliation between them admittedly failed resulting in the Reference under Section 10(1)(d) much prior to the settlement and thus it was not binding on the contesting workmen since their representative did not take part in the settlement nor were they signatory to it. Even under Section 2(p) of the Industrial Disputes Act such conciliation and/or settlement proceeding and/or agreement has to be signed by the parties and a written agreement has to be arrived at which is not done in the present case.
11. The Hon'ble Supreme Court in : (1986)ILLJ432SC has held as under:.The expression 'settlement' is defined in Section 2(p) of the Industrial Disputes Act, 1947. It means a settlement arrived at in the course of conciliation proceeding and also includes a written agreement between employer and the workmen arrived at otherwise than in conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorized in this behalf by the appropriate Government and the Conciliation Officer. A distinction is made in the Industrial Disputes Act, 1947 between and a settlement arrived at in the course of conciliation proceeding and a settlement arrived at by agreement between the employer and workmen otherwise than in conciliation proceeding....
Further, it has been observed in the said judgment as under:.But in the case of a settlement not arrived at in course of the conciliation proceeding it has to be in writing and signed by the parties in the prescribed manner and a copy thereof should be sent to the officer authorized by the appropriate Government in this behalf and to the Conciliation Officer.
Such a settlement arrived at by agreement between the employer and workmen otherwise than to the course of conciliation proceeding is binding on the parties to the agreement as provided in Section 18(1) of the Industrial Disputes Act, 1947. Such a settlement is not binding on the other workmen who are not parties to the settlement....
12. Under Section 18(3) only such settlement which have been arrived at in the course of conciliation proceedings under this Act or an arbitration award which has become enforceable shall be binding on all the parties to the Industrial Dispute and under Section 18(1) a settlement arrived at by agreement between the employer and the workman otherwise then in the course of conciliation proceeding shall be binding on the parties to the agreement.
Sub-sections (4) and (5) of Section 12 lay down that if no settlement is arrived at, the conciliation officer shall submit a full report to the appropriate Government which if satisfied that there is a case for reference of the dispute to a Board, Labour Court, Tribunal or National Tribunal, as the case may be, may make such a reference and shall record and communicate to the parties concerned its reasons thereof. So far as the settlement arrived at outside the conciliation proceedings is concerned, Section 18(1) deals with such settlement and lays down that a settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceedings shall be binding on the parties to the agreement. Sub-section (3) of Section 18, however, deals with settlement arrived at during conciliation proceedings and will not apply to the facts of this case since the conciliation failed and the dispute was referred by the appropriate Government for adjudication.
13. In ANZ Grindlays Bank Ltd. v. Union of India reported in : AIR2006SC296 the facts of the case were completely different since the settlement had already been acted upon and there was no industrial dispute in existence nor there was any apprehended dispute between the appellant bank and the federation and in this background it was held by the Hon'ble Supreme Court that there was absolutely no occasion for making any reference for adjudication by the Industrial Tribunal.
The Hon'ble Supreme Court also relied upon : (1978)IILLJ22SC (Tata Chemical Ltd. v. Workmen) wherein at paragraph 13 it was held as under:
Whereas a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding is binding only on the parties to the agreement, a settlement arrived at in the course of conciliation proceeding under the Act is binding not only on the parties to the industrial dispute but also or other persons specified in Clauses (b), (c) and (d) of Sub-section (3) of Section 18 of the Act.
In fact the Hon'ble Supreme Court in ANZ case (supra) at paragraph 9 held as under:
The Federation (the second respondent) not being party to the settlement, it is obvious that the same is not binding upon it in view of Sub-section (1) of Section 18 of the Act. Thus the settlement dated 18.8.1996 did not affect the rights of the Federation (the second respondent) in any manner whatsoever and it can possibly have no grievance against the said settlement.
14. On consideration of the aforesaid judgments the inference and the ratio of the law as declared is that once a written statement is arrived at during the conciliation proceeding only such settlement under Section 18(3) has a binding effect not only to the signatories to the settlement but also on all parties to the industrial dispute which would cover the entire body of workmen. However, in the instant case the fact is that the conciliation proceedings had failed and the matter was referred to the appropriate Government for reference under Section 10(1)(d) of the I.D. Act for adjudication before the Industrial Tribunal and thus the judgments (supra) referred by the learned Counsel for the petitioner will not apply since those were cases where the settlement was arrived at between the parties during the conciliation proceeding under Section 12 of the Industrial Disputes Act.
15. But in the present case there is no settlement as provided under Section 2(p) of the Act in as much as no agreement has been signed by the concerned workmen and management.
16. Regard having to the facts and circumstance of the case, it cannot be said that the statutory settlement as contemplated under Section 2(p) read with 18(3) was entered into between the contesting workmen/respondent herein to make it enforceable and binding.
17. Considering the aforesaid facts and circumstances of the case, these writ petitioners are dismissed.