Srinivasan, J.
1. The appellant is aggrieved by the dismissal of the Writ petition for the issue of a writ of mandamus directing the third respondent not to implement the notice dated 24.8.1987, issued under Section 9-A, of the Industrial Disputes Act (hereinafter referred to as 'the Act'), until the dispute is resolved by way of settlement or adjudication. The facts set out in the affidavit filed in support of the writ petition, Co the extent necessary, are as hereunder:
The last settlement between the appellant union and the third respondent management dated 12.11.1982 expired on 31.12.1984. The union placed a charter of demands on 213.1985, after terminating the settlement under Section 19 of the Act. Conciliation efforts failed and the concerned Labour Officer sent his failure report dated 8.9.1987 to the Government, which sent a notice to the union on 19.10.1987 to the effect that the failure report was received by the Government on 6.10.1987. The Management had issued a notice under Section 9-A. of the Act on 24.8.1987 proposing certain changes in service conditions. On a protest by the Union, efforts were made for bringing about a conciliation before the Labour Officer and ultimately they ended in a failure on 5.10.1987. The failure report dated 19.10.1987 was received by the Government on 28.10.1987 which was duly intimated to the Union by the Government. The management issued a notice dated 31.10.1987 stating that they would implement the changes proposed in Section 9-A notice dated 24.8.1987.
Alleging that the management gave an assurance on 14.9.1987. before the Labour Officer that they will not implement Section 9-A notice until the matter is settled or adjudicated upon by the Industrial Tribunal, the Union filed the writ petition for issue of a writ of mandamus as aforesaid. The contention raised in the affidavit filed in support of the writ petition is that the notice under Section 9-A, of the Act cannot be implemented by the management if there is an objection by the Union to the proposed changes. A ground of estoppel was also raised, but it was not pressed either before the learned single Judge or before us.
2. Nainar Sundaram, J. dismissed the writ petition holding that there is no inhibition either in Section 9-A or Section 33 of the Act or in any other provision of law against the management from altering the conditions of service after complying with the procedure prescribed in Section 9A of the Act. The learned Judge also observed that the Government will do well to take up the question of reference with expedition so that the industrial peace could be maintained.
3. In this appeal, Mr. Prasad appearing for the appellant vehemently contended that the relief sought in the writ petition is a preventive remedy whereby the third respondent-management is sought to be restrained from acting contrary to the provisions of the statute. He urged that the action of the management in seeking to implement the proposals found in Section 9-A notice is absolutely illegal and that the management should wait for an adjudication of the matter by the Industrial Tribunal after a reference is made by the Government. It is also his contention that the management has no right whatever to alter the conditions of service and thereby supersede the terms of the settlement effected on 12.11.1982 which will hold good until a fresh settlement is brought about or an award is passed by the Industrial Tribunal. A plea admiseri cordium was also advanced that about 120 families would suffer great hardship if the management carries out the changes proposed in Section 9-A notice.
4. As arguments were advanced by Mr. Prasad at great length, we are obliged to deliver this long judgment. The principles on which a mandamus could be issued under Article 226 of the Constitution of India are by now well settled. In Praga Tools Corporations v. C.V. Imanual : (1969)IILLJ479SC , the Supreme Court has stated succinctly the proposition of law thus:
No doubt, Article 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus mandamus, etc. or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its worker or to resolve any private dispute.... Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. Amandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings.
5. It is thus clear that the person against whom a mandamus is sought should be under an obligation to perform a public duty or a statutory duty. Unless there is a public duty or statutory duty, the court cannot issue a writ of mandamus either to a statutory corporation or a private company. The crucial question is whether there is such a duty cast upon the third respondent management by the provisions of the Industrial Disputes Act. Section 9-A of the Act provides that no employer who proposes to effect change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule shall effect such change without giving to the concerned workman a notice in the prescribed manner of the nature of the proposed changes or within 21 days of giving such notice. It is not necessary for us to consider the terms of the proviso to the Section. Section 33(1)(a) of the Act prevents an employer from altering to the prejudice of the workmen concerned in a dispute, the conditions of service applicable to them in regard to any matter connected with a dispute during the pendency of any conciliatory proceeding before an arbitrator or a Conciliation Officer or a Board or of a proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute without the express permission in writing of the authority before which the proceedings is pending. Section 33(2)(a) of the Act provides for matters which are not connected with the pending disputes and permits the employer to alter the conditions of service in accordance with the standing orders applicable to the concerned workmen and where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between the employer and the workmen.
6. Thus, Section 33 of the Act provides for alteration of conditions of service during the pendency of industrial disputes and conciliation proceedings and Section 9-A of the Act provides for the procedure for alteration of conditions of service with respect to matters specified in the Fourth Schedule when there is no industrial dispute or conciliation proceeding pending. There is no provision in the Act prohibiting the management from altering the conditions of service after following the procedure prescribed therein. Once the management complies with the express provisions of the Act, it cannot be said to owe a public duty or a statutory duty to await a reference which could be made at the instance of the workers before implementing the proposals contained in the notice issued under Section 9-A of the Act.
7. The bone of contention urged by Mr. Prasad was that the proposed changes would run counter to the terms of settlement dated 12.11.1982 which are binding in spite of the termination of the same by the Union after the expiry of the period for which it was entered into. This shows that in effect, the appellant is seeking to enforce the right created under the settlement dated 12.11.1982 in spite of the fact that the appellant had terminated the same and issued a charter of demands as seen earlier. The enforcement of the terms of the settlement dated 12.11.1982 is only the enforcement of a contractual obligation. That does not give rise to any statutory obligation or public duty on the part of the third respondent. This position is made clear by a Division Bench of the Bombay High Court in Scindia Steam Navigation Co. Ltd. v. Schindia Employees Union and Ors. : (1983)IILLJ476Bom . In fact, this decision was cited by Mr. Prasad himself. The following observations made by the Bench are relevant:
Thus if the terms of an agreement, which is described as a settlement under Section 2(p), by virtue of the effect of extension brought about by Section 18(1) of the Act is nothing more than making the terms of settlement a part of contract of employment or terms of employment, it is difficult for us to hold that provisions of Section 18(1) have the effect of creating a statutory duty or a public duty against any part to the agreement. Reliance on the penal provision in Section 29 would not take the matter any further and it would not have the effect of converting what in essence is a contractual obligation into a statutory obligation. The fact that a breach of a settlement is made punishable cannot be taken as conclusive of any intention on the part of the Legislature to give a settlement, which in essence is nothing more than an agreement, the status of an instrument creating a statutory right of obligation.
8. A Division Bench of this Court in The Workmen of Buckingham and Carnatic Mills v. State of Tamil Nadu : (1982)IILLJ90Mad has laid down that a writ of mandamus cannot be issued for enforcing a contractual obligation arising under a settlement. The Bench observed as follows:
On the facts of this case, we are of the view that B & C Mills is not amenable to the jurisdiction of this Court under Article 226 of the Constitution of India for the issue of a writ of mandamus. We have already referred to the circumstances in which and the persons against whom, a writ of mandamus could be issued only for the performance of an act which is in the nature of a public duty. We are not persuaded to accept the argument of Mr. Prasad that there is a public duty cast on the B & C Mills to fulfil the terms of the settlement entered into by it with the workmen under Section 12(3) of the Act. The implementation of the settlement entered into by the B & C Mills with its workmen cannot be called a duty which is in the nature of a public duty. The obligation arising under the settlement is purely contractual and a writ of mandamus cannot issue for the enforcement of a contractual right. It is not necessary to cite any precedent so far as this proposition is concerned. The two L.I.C. cases cited by the learned Counsel viz., M.M. Pathak v. Union of India : (1979)ILLJ406Ker and L.I.C. v. D.J. Bahadur : (1981)ILLJ1SC , are of no assistance to him as in those cases writ of mandamus were issued to the Life Insurance Corporation of India as it was an authority within the meaning of Article 12 of the Constitution of India and, therefore, amenable to the writ jurisdiction.
With respect we agree with the dictum of the Division Bench and the only result that could follow is to dismiss this writ appeal.
9. Learned Counsel for the appellant invited our attention to the decision of a single Judge of the Andhra Pradesh High Court in T. Gattaiah v. Commissioner of Labour : (1981)IILLJ54AP for the proposition that a writ could issue even against private persons for enforcing statutory duties. It is not necessary for us to consider in detail the said ruling as the decision of the Division Bench of this Court referred to earlier has fully considered the same in The Workmen of Buckingham and Carnatic Mills v. The State of Tamil Nadu (1982) II L.L.J. 9 and made the following observations:
The learned Counsel for the petitioners heavily leaned on the decision of Chowdhary, J. of the Andhra Pradesh High Court in T. Gattaiah v. Commissioner of Labour : (1981)IILLJ54AP . The Judgment of the learned Judge cannot be understood in the sense that the learned Judge has held that in all cases a writ would lie against a private individual of an incorporated/company. On the other hand, the learned Judge has observed in Paragraph 20 that in appropriate cases a writ under Article 226 of the Constitution would issue even against a private person. A perusal of the entire judgment would show that mandamus would issue against a private individual or an incorporated company provided the private individual or the company is enjoined in law to perform a duty of a public nature. If the learned Judge has meant that a writ could be issued against a private person or an incorporated company even for the purpose of enforcing a contractual right or any other private right without reference to the question whether the writ that is sought for would lie against that private individual or company under the established principles, then we must confess, with great respect to the learned Judge, that we are unable to subscribe to that view and we see no justification for holding that the 'person' referred to in Article 226 would take in every private individual with respect to every private act or a mission of his.
10. The ruling in EID Parry's Staff v. Deputy Commissioner of Labour-I, Madras : (1985)ILLJ340AP cited by learned Counsel for the appellant for from helping him is against his contention. Though the learned Judge in that case stated as a proposition of law that Section 33(1)(a) pf the Act creates a mandatory obligation upon the employer not to alter the conditions of service of workmen concerned in a dispute pending before Conciliation Officer and other authorities specified in the Section, and if such alteration is likely to take place, a writ of mandamus could be issued commanding the employer to abide by the statutory mandatory obligation, the learned Judge found on the facts that there was no conciliation proceeding pending at the time of the disposal of the writ petition and consequently refused to issue a writ. It is seen from the report of the case that at the time when the writ petition was filed, a conciliation proceeding was pending and a failure report was sent by the conciliation officer to the Government subsequently. Taking note of the subsequent even, the Court refused to issue a writ of mandamus as there was no conciliation proceeding pending within the meaning of Section 33(1)(a) of the Act. The present case is an a fortiori case and even before the writ petition was filed, a failure report had been received by the Government and the same was intimated to the appellant. By no stretch of imagination a proceeding could be said to be pending within the meaning of Section 33 of the Act.
11. Learned Counsel for the appellant placed strong reliance on the observations made by the Supreme Court in The Management of Indian Oil Corporation Ltd. v. Its workmen : (1975)IILLJ319SC . In that case, the management sought to alter the conditions of service without issuing a notice under Section 9-A of the Act. That decision does not in any way help the appellant herein. Nor does the judgment of the Supreme Court in L.I.C. of India v. D.J. Bahadur : (1981)ILLJ1SC help the appellant. In that case, the Supreme Court held that the Life Insurance Corporation of India was bound by the settlements of 1974 and until they were altered by fresh settlement or award or valid legislation, the same would continue to be in force. It was held that a regulation framed by the Corporation which ran counter to the terms of the settlement was not valid. The Supreme Court had no occasion in that case to consider the question which has arisen before us.
12. Mr. Prasad relied upon the observations of Division Bench of the Bombay High Court in H. Sinde v. Industrial Tribunal, Bombay : AIR1970Bom213 . It is seen from the facts of that case that a dispute was referred to the Industrial Tribunal by the Government and it was pending at the time when a notice was issued by the management under Section 9-A of the Act. The observations made by the Division Bench of the Bombay High Court have to be understood in the context of that case. The ratio of that decision will not help the appellant in the present case.
13. Mr. Prasad relied on the observations of the Supreme Court in Rohtas Industries Ltd. v. Staff Union : (1976)ILLJ274SC that the power under Article 226 of the Constitution of India is wide to affect even a private individual and contended that a writ could issue against the third respondent company. He drew our attention to several instances in this Court and the Supreme Court when the power has been exercised against private companies. We do not find any necessity to make a detailed reference to them as we have held that what is sought to be enforced in these proceedings is a contractual obligation and not a statutory duty.
14. In fact, we have no option but to agree with the conclusion of the learned Judge and dismiss the appeal. The Appeal is, therefore, dismissed. There will be no order as to costs.
15. After the pronouncement of the judgment, learned Counsel for the appellant prays for leave to appeal to the Supreme Court orally on the ground that there is a substantial question of law of general importance. Our judgment is based upon decisions already rendered by this Court and by the Supreme Court. Hence, we do not think that this is a fit case where leave to appeal to the Supreme Court could be granted. Leave refused.