| SooperKanoon Citation | sooperkanoon.com/349637 |
| Subject | Labour and Industrial |
| Court | Mumbai High Court |
| Decided On | Jan-22-2001 |
| Case Number | Writ Petition No. 2313 of 2000 |
| Judge | Mr. R.J. Kochar, J. |
| Reported in | 2001(2)ALLMR302; 2001(3)BomCR160; (2001)3BOMLR377; [2001(88)FLR1069]; (2001)ILLJ877Bom; 2001(3)MhLj81 |
| Acts | Industrial Disputes Act, 1947 - Sections 2, 10 and 10(1); Industrial Disputes (Bombay) Rules, 1957 - Rule 26 |
| Appellant | Hindustan Lever Limited |
| Respondent | Hindustan Lever Mazdoor Sabha |
| Appellant Advocate | Mr. P.K. Rele and ;Piyush Shah, Advs. |
| Respondent Advocate | Mrs. Meena Doshi, Adv. |
| Disposition | Rule made absolute |
R.J. Kochar, J.
1. This is one more instance where a frivolous litigation claims very valuable public time in the Court of law. It is really an abuse of process of the Court of law. The petition has arisen from an order passed by the learned Member of the Industrial Tribunal on 22.9.2000 on an application made by the Hindustan Lever Mazdoor Sabha (hereinafter referred to as Union) in the pending reference No. I. T. No. 39 of 1997. Following the union, the petitioner Company had also filed similar application and sought for similar, prayers as sought for by the union. Both these applications were taken on record by the Tribunal and marked as Exhibits U-141 and C-234. It appears that after giving 'No objection to this Hon'ble Tribunal passing an expert award in the case of those who have made the application by way of affidavits in the year 1998-99.' the Union has turned about and made volte-face. The union is now vehemently opposing the prayer of the Company for an award in terms of the settlement. The learned Member was also constrained to pass a very lengthy order running into more than 25 pages, obviously after wasting a number of days for hearing the submissions made on behalf of both the contesting parties. The Tribunal has finally passed the following operative order :-
'The Reference to proceed expert in case of Field Force employees who have made an application by way of affidavits for the years 1998 and 1999.
The Company's request for passing ex parte Part I Awards in terms of individual settlements signed and filed before this Court of years 1998 and 1999 is hereby rejected.
The Company is hereby permitted to lead the evidence of the Area Sales Managers in respect of the settlements of the years 1998 and 1999 if the Company so desires.'
From the lengthy synopsis and the sequence of dates and events from 1957 onwards, it is clear How bitterly the contest is being fought out by the employer and the Union. Both the learned Counsel have taken me through the events from 1957 till the end of the century. I do not wish to dwell upon the historical background of the dispute nor do I have any such patience to do so. The point is very simple though the learned Counsel appearing before the Tribunal as well as the learned Counsel appearing before me have made it appear to be a complicated question involving intricacies of law. I have heard both the learned Counsel at quite a length as there was no other alternative.
2. The reference under Section 10(1) of the Industrial Disputes Act, 1947 which is pending before the Industrial Tribunal is in respect of a charter of demands submitted on behalf of the workmen-employees of the petitioner Company for adjudication. The litigation between both the sides is endlessly going on upto the Supreme Court. One segment of the workmen whose industrial dispute is pending before the industrial Tribunal for adjudication in respect of general demands such as wages, D.A. etc. is known as field force employees. This category appears to comprise of salesmen or sales representatives and medical representatives employed by the petitioner Company. It appears and there is no dispute that these field force employees have separately and independently entered into individual 2P settlement with the petitioner Company for the years 1996-97, 1997-98, 1998-99 and 1999-2000. Under these settlements the field force employeesappear to have received on an average increase' of Rs. 2000/- to Rs. 3000/ - per month. It also appears that these field force employees are not the members of the Union and the Union has disowned them.
3. The present petition has arisen from the application (Exh. U-141) dated 19th July. 2000 made by the Union. !t will be pertinent to reproduce three relevant paras from the said application for ready reference and better appreciation of the present litigation instantaneously :-
'1. The Company has so far led evidence of six witnesses concerning the 1996 and 1997 alleged individual Section 2(p) settlements entered into by the field force employees with the Company. Evidence of one witness concerning individual settlements of 1996 of Calcutta Branch and one of 1997 of Delhi Branch are yet to be completed, which means only two witnesses are left for 1996 and 1997 settlements.
2. In so far as the Company's evidence of the individual settlements of 1998 and 1999 is concerned, it is a matter of record that the Company has filed applications by way of affidavits of each and every field force employee stating that the concerned employee has entered into a Section 2(p) settlement with the Company in full and final settlement of the demands referred to this Hon'ble Tribunal. The said affidavits of field force employees have been taken on record and are already exhibited.
6. In view of the above position in law, the Sabha submits that it has no objection to this Hon'ble Tribunal passing an ex parte award in the case of those who have made the applications by way of Affidavits in the years 1998 and 1999. In the said changed circumstances, it is neither necessary nor relevant for the Area Sales Managers to give evidence concerning the voluntary character of the individual settlements of 1998 and 1999.'
4. The petitioner Company filed its reply to the said application and has also filed a separate application dated 21st July, 2000 (Exhibit C-235). Paragraphs 1 and 5 from the said Exhibit C-235 are also required to be reproduced.
'The Sabha has, on 19th July, 2000, made an application by which it has urged that they have no objection to making an award in terms of the settlements entered into by the Company with the individual employees who have individually filed affidavits before this Hon'ble Court praying that an Award be made in terms of the said settlements. In the light of the said submission, an Award may please be made in terms of the said settlements. The averments made in this behalf in the said application are reproduced hereinbelow.
5. In the light of what is stated above, since both the parties have no objection to an Award being made, it is respectfully prayed that an Award may please be made in terms of the settlements signed and filed before this Hon'ble Court for the years 1998 and 1999.'
Upto this point of time both, the petitioner Company and the Union, were at ad idem and wanted the same reliefs from the Industrial Tribunal. It appears that the union's conscience got pricked when its office-bearers realised that even the Company had agreed with what the union had demanded in its Exh. U-141. The Union, therefore, filed a so called rejoinder to the Company's reply dated 21.7.2000. The rejoinder runs into more than 15 pages and written submissions on that point run into 50 pages before the Industrial Tribunal. A sheer waste of time and energy of the Courts and also of the stationery, if I may say so. In this so-called rejoinder, the Unionhas made a vault face and has tried to wriggle out of its earlier prayer of expert award in terms of the settlement, qua, the field force employees. The Union has tried to back out from its earlier stand and has tried to interpret its own application in a curious manner to sound that what was communicated by the simple words was wrong and the Union intended something else to the contrary. Fortunately for the Union, the Industrial Tribunal also get confused and passed the impugned order, rejecting the Company's prayer for passing ex parte Part I award in terms of the individual settlements and orderin;' to proceed ex parte in case of field force employees, who had made an application by way of affidavits for the years 1998-99 settlement.
5. Shri Rele, the learned Counsel for the petitioner Company has drawn my attention to an undisputed chart (page 43 of the paper book). From this chart it is clear that in the year 1996 out of 592 field force employees 590 had signed the 2(p) settlement. In the year 1997 out of 607 employees 605 employees had signed the settlement. In the year 1998 out of 670 employees 668 had signed the settlement. In the year 1999 out of 755 employees 754 field force employees had signed the settlement and in the year 2000 out of 887 employees 886 had signed the settlement. It is thus crystal clear that barring maximum two employees unblock field force employees had signed the 2(p) settlements, accepting the benefits thereunder every year. There is no charge or allegation of force or coercion on them to sign the settlement. All of them appear to have signed these 2(p) settlements in accordance with law and have continued to accept and receive the benefits under these settlements which have been signed year after year continuously. None of them has come forward to say that he was forced or coerced or even misrepresented to sign such settlement. There is not even ghost of challenge from them or from any one of them that these settlements are not legal and are not just and fair. I may mention here that this Class of field force employees is not an illiterate class to sign on dotted line. They have signed these settlements continuously for five years and they have been receiving the benefits under these settlements for such a long period without any grievance or complaint against the Company. These employees also form a part of the union in the above reference for adjudication of charter of demand. Their demands have also been included in the charter of demands for adjudication. They have made an application individually on affidavits and submitted to the Tribunal that as far as they are concerned, they have settled their demands separately and individually by signing separate and individual 2(p) settlements with the Company and as far as they are concerned, they do not have any dispute in respect of their demands in the reference and therefore, they should be excluded from adjudication and that award in terms of the settlements should be passed. The Company has filed these affidavits along with settlements and along with an application before the Tribunal and the Company has prayed for an award in respect of these settlements qua these field force employees who signed these settlements.
6. Knowing very well that the field force employees had ceased to be its members, the union filled the aforesaid Exh. U-141 contending that it had no objection if the Tribunal passed an ex parte award in the case of those who had made the application by way of affidavits in the years 1998-99. This application made on behalf of the union is very significant in the sense that the union is very well aware of the individual settlements entered into between the Company and the aforesaid field force employees from the year 1996 onwards. The union is fully aware of these settlements from the year 1996 and had never challenged the legality, validity and fairness of those settlements at any point of time as it knew that this particular segment of the employees was not represented by them and that they had ceased to be their members. This fact is further proved by the application made by the union when the union sought an ex parte order against them as they were not remaining present before the Tribunal. If the union had represented them in that case they could not have been termed as absentee and they could not have sought ex parte award in the dispute. In fact the use of term 'ex parte' is a mistake of understanding on the part of both the sides. The union having made such an application to seek 'an ex parte award' against the field force employees who had filed affidavits praying for the awards in terms of the settlement, could not have opposed Company's application for such an award Part (1) in terms of the settlement, as far as, the field force employees are concerned. Up to this point of juncture both had agreed that field force employees had been signing individual 2(p) settlements from 1996 onwards and that they had signed settlements for the years 1998-99. 1999-2000 and therefore, there was no sense in insisting for adjudication of these demands including the point that they did not fall within the definition of Section 2(s) ('workman') of the Industrial Disputes Act, 1947.
7. In the aforesaid circumstances, I do not see any reason for the union to have opposed the Company's application for Part I award in terms of the settlement, [even the Company has wrongly used the term ex parte). The field force employees were very much before the Tribunal. They had filed their own affidavits and they had requested the Tribunal to pass an award in terms of settlement as far as they are concerned. When the party is very much present before the Tribunal, it cannot be said to be ex parte. It was the bounden duty of the Tribunal to have passed an award Part (I) in terms of the individual 2(p) settlements as far as the field force employees are concerned. I fail to understand how anyone can oppose such a prayer though the field force employees have themselves settled their own dispute with the petitioner and they themselves have in their affidavit clearly stated that they had no dispute of any nature with the Company. Shri Rele, the learned Counsel for the petitioner has taken me through the settlements. The union also is aware of this settlement. There is no allegation of force and coercion. There is no case made out by the union that this settlement is in any way unfair and unjust or illegal. When all the field force employees have signed the settlements year after year for five years and have enjoyed the benefits under the settlements, the charge of unfairness as regards the settlements will not stand even for a minute.
Shri Rele has cited the following judgments in support of his contentions:-
(i) State of Bihar v. D.N. Ganguli and Ors.,:
(ii) Sirslik Ltd. and Anr. v. Government of Andhra Pradesh and Anr.,;
(iii) Tata Engineering and Locomotive Co. Ltd. v. Workmen.
In all fairness I may say that no judgments are necessary for such a simple proposition of law.
8. As observed by the Supreme Court in the case of State of Bihar v. Ganguli (supra) it would be very unreasonable to assume that the Industrial Tribunal would insist upon dealing with dispute on the merits even after it is informed that the dispute has been amicably settled between the parties. The Supreme Court has emphasised the importance of amicable settlement which led to industrial peace and harmony, which are the primary objects of the Act. The Tribunal must immediately make an award in terms of the settlement between the parties is the law laid down by the Supreme Court.
9. In the case of Tata Engineering (supra) the following observations of the Supreme Court are very significant :-
'A settlement cannot be weighed in any golden scale and the question whether it is just and fair has to he answered on the basis of principles different from those which came into play where an industrial dispute is under adjudication. If the settlement has been arrived at by a vast majority of workmen with their eyes open and was also accepted by them in its totality. It must be presumed to be fair and just and not liable to be ignored merely because a small number of workers were not parties to it or refused to accept it or because the Tribunal thought that the workers deserved marginally higher emoluments than they themselves thought they did.'
10. In the present case there is not only a vast majority but except a lone soul, all other field force employees have signed the settlement and they are presumed to be fair and just and are not liable to be ignored at all. Shri Rele has further cited an unreported judgment of the Madras High Court in the case of The Management of Binny Ltd. v. The Presiding Officer and Ors.,2 wherein in para 73 the learned Judge has observed as under :-
'73. Though this contention is attractive and the learned Counsel is also supported to a certain extent by the pronouncement of the Apex Court on the facts of the case, it is clear that it is not an individual settlement really each individual signed the settlement. In fact, identical settlements had been entered between the Management and all the workmen employed in the Industry in question and therefore it cannot be said that it is an individual settlement, but 011 the other hand, it is a settlement between the entire block of workmen on one side and the employer. It is being pointed out by Mr. Kurian that it is the Union which had been adopting a particular course and which course had compelled the workmen to negotiate and sign settlement individually. It is true that if one of the individual had signed such a settlement, it could be branded as invalid and unenforceable as it is not an individual grievance, but in the present case, alt the workmen employed in the Industry in question have signed the settlement providing for identical benefits containing identical clause in all respects. Merely because, individual workmen have signed individually, it cannot be said that it is a settlement with an individual workman. But in fact.it is a settlement with all the workmen. Therefore, this settlement cannot be avoided and it is binding on the workmen.'
11. It is the case of Mrs. Doshi for the Union that what was intended by the Union in U-141 was not 'ex parte award in terms of the settlement' but the prayer was intended only to 'proceed expert' against the field force employees, as they were not remaining present before the Tribunal. I do not agree with the said submission which are stated merely to be rejected. The application U-141 dated 19th July, 2000 speak for itself and it needs no interpretation or any explanation. What was intended by the Union is very clearly communicated through the simple language of the said application. From this application it is crystal clear that the Union knew that the field force employees have been signing settlements individually from the year 1996. The Union also knew that affidavits were filed. The Union also knew that they have prayed for awards in terms of the settlements. In the aforesaid clear knowledge, the union has categorically told the Tribunal that it had no objection if 'an ex parte award was passed in the case of those who have made an application by way of affidavits in the years 1998-99'. It is thus crystal clear that the Union had no objection at all for expert award being passed by the Tribunal on the basis of the affidavits filed by the field force employees for the years 1998-99. It is sheer dishonesty and a dishonest afterthought to say that the union did not mean expert award being passed but it only meant or it only intended to proceed ex parte against the field force employees as they were remaining absent. There is no question of proceeding ex parte against the field force employees for two reasons, one they had filed affidavits and requested the Tribunal to pass ex parte awards in terms of the settlement and secondly the union claimed to represent them. In that case, there is no question of proceeding ex parte against the field force employees. It is sheer dishonesty on the part of the union to turn around and try to change its earlier stand presented so clearly and so eloquently in its application U-141. There was no question of filing their rejoinder which did not require any explanation. Mrs. Doshi has further pointed out that the Tribunal is seized of the dispute and is proceeding day-to-day and there should be no hurry for the petitioner Company to get individual awards qua the field force employees in terms of the settlements. She has, however, no objection if the Tribunal finally passed such award along with final award. But she has strong objection if the Tribunal passes such an award as Part I award at this stage. I fail to understand the logic behind such submissions and such stand taken by the union.
12. Mrs. Joshi has further pointed out that the Tribunal has framed as many as 9 issues and that it must decide all these issues which have been framed before passing an award. According to her. the question of validity of termination of 1957 agreement is yet to be decided by the Tribunal. If the union succeeds on this issue before the Tribunal, in that case, all the settlements from the year 1996 onwards would fall down as illegal and improper being contrary to the '1957 agreement'. I do not agree with this submissions which are far-fetched. The Tribunal might decide the question of validity of the termination of the 1957 agreement. As far as the field force employees are concerned, they have clearly accepted the validity of the termination of the said agreement by the Company and they have no disputeon that point. The agreement was validly terminated according to these employees. If that is so, as far as these employees are concerned, that issue become a totally irrelevant and a non issue, which has already been resolved between the parties. The Tribunal can decide and would definitely decide all the issues which are pending between the union and the petitioner Company in respect of the other workmen represented by the Union.
13. Shri Rele has repeatedly made it abundantly clear that the petitioner Company has no objection to proceed with the adjudication as far as the demands of the other workmen are concerned. Even the field force employees have no objection if the adjudication of other demands of the other employees is completed in accordance with law. According to me, therefore, the question of termination of 1957 agreement cannot come in the way of the Tribunal and cannot come in the way of this Court to hold that the Tribunal should have passed awards in terms of the 2(p) settlement filed by the field force employees.
14. Mrs. Doshi has further contended that all the issues which were framed by the Tribunal are interconnected and they required to be decided. Shri Rele has absolutely no objection for the Tribunal to decide all these issues. I fail to understand how the union can come in the way of the field force employees who have settled their disputes with the petitioner Company, by filing a legal and valid 2(p) settlement before the Tribunal. The field force employees have also appeared to have considered the question of challenge to their status as 'workmen' within the meaning of Section 2(s) of the Industrial Disputes Act in the light of the judgment of the Supreme Court in the case of H.R. Adhyanthaya v. Sondeze India Ltd., wherein a sales representative is held not to be a workman. Instead of taking any risk as a practical solution, the field force employees have entered into a 2(p) settlement individually to get certain benefits. In case if they arc held to be not workmen, they will not get any benefit in the award.
15. Another argument of Mrs. Doshi is that nothing would survive if the settlement are held to be fair and proper. Since there is no challenge on any ground, I fail to understand, how the union can question the fairness and propriety of these settlement. As far as the union is concerned, it is a third party and a stranger. The fairness and propriety of the settlement can be adjudged between the signatories of such settlement. It would be open to any of the field force employees to say that the said settlements were not fair and just to him. The union cannot say that such settlements were not fair and just. More so, there is not even a whisper of any ground on which such a settlement can be said to be not fair and just. Mrs. Doshi has further submitted that the settlements are contrary to the 1957 agreement and therefore, these settlements are not permissible. I have perused the terms of the 1957 agreement, which is a letter written by the Company to the union. I do not see any clause in the said letter which prohibits the parties from arriving at such a settlement. Besides, the field force employees have accepted the validity of the termination of 1957 agreement and it does not come in their way to have an amicable settlement with the Company. Thefinal submission of Mrs. Doshi is that no prejudice of any nature would be caused to the petitioner Company if the Tribunal decides the entire reference. There is no question of prejudice. As far as the Company is concerned, it has no objection if the reference is decided finally. Its only endeavour is that having settled the disputes of the field force employees one segment of the workmen pending in the reference is finally settled and therefore, there cannot be any adjudication over again on those very demands of the field force employees. The prejudice is obvious. The Company having settled and paid the benefits under the settlement, cannot be made to undergo the ordeal of trial once again for the very same demands which have been settled amicably. The Company indeed is an aggrieved party if the adjudication still goes on even in respect of the demands of the field force employees in spite of the amicable settlement. It, therefore, cannot be said that the Company is not are aggrieved party and that it cannot make any application to the Tribunal to get Part I award in terms of the 2(p) settlement, as far as the field force employees are concerned.
16. In the aforesaid circumstances, I make the rule absolute in terms of the prayer clauses (a) and (b). The words ex parte in prayer clause (b) are deleted. The Union shall pay costs quantified at Rs. 10,000/-. I am imposing this cost on account of frivolous and vexatious litigation which is carried on by the Union.
17. Mrs. Doshi, the learned Advocate for the Union prays for stay of this order for a period of 8 weeks. Shri Rele, the learned Counsel for the petitioner opposes the prayer. Stay is refused. Authenticated copy of this judgment and order is directed to be given to the parties.