Pune Labour Union Through Its President Vs. State of Maharashtra, Industrial Energy and Labour Dept. Mantralaya, - Court Judgment

Excerpt:
- bombay stamp act, 1958. schedule 1, article 36: [y.r. meena, cj & d.a. mehta & a.s. dave, jj] deed of mortgage liability to pay stamp duty held, any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds, agreements of pawn or pledge and letters of hypothecation executed by farmers for agricultural and land development purposes in favour of all commercial bank etc. are entitled to remission of entire duty chargeable under the stamp act with effect on and from 1.4.1979 under government notification dated 23.3.1979. thus, where loan was granted by bank of india under agricultural finance scheme towards purchase of air compressors, drilling rods and other accessories. use of the air compressors, drilling rods and other accessories in case of applicant who is a farmer can only be for purpose of drilling a bore-well for purpose of irrigation in process of carrying on agricultural activities. thus, it is apparent that loan was availed of by applicant-farmer for agricultural and land development purposes because a bore-well would go to increase the utility of agricultural land by ensuring round the year irrigation. the instrument in question would therefore fall within scope of complete remission granted to instrument of mortgage under government notification dated 23.3.1979 and hence not liable to stamp duty under article 36 of schedule i of the act. - 5. the first question that we have to consider is whether the action of the appropriate government in rejecting the application for reference can be said to amount to failure to exercise jurisdiction. a failure report was submitted and a further order came to be passed on 10.11.2005 rejecting the reference by giving reasons as follows. a union is not prevented from raising a fresh demand as long as there is subsequent material and or the like. during pendency of the complain, the settlement under section 2(p) came to be signed and where the individual workman accepted the compensation.f.i. rebello, j.1. the petitioners are the registered union seeking to represent the workmen earlier employed with respondent no. 3. it is the case of the petitioners that there were more than 100 workmen in the year, 1998 and between march and april, 1998, 16 employees were retrenched from service. earlier the mazdoor union sought to raise a dispute, but, the concerned authority did not refer the dispute to the industrial tribunal or labour court. by its order dated 10.6.2002, the appropriate government was pleased to reject the request for reference for adjudication. considering section 12(5), the reasons are set out in the said order.2. it is the case of the petitioners that thereafter 16 workmen in the establishment organized themselves under the pune labour union and sought to redress their grievances. it is their case that their services were terminated on 31.3.1998 and 1.4.1998 as retrenched, without following due process of law and even without seeking permission of the appropriate government and that too by paying inadequate compensation.3. the submission of the petitioners is that on 18.10.1998 which was a sunday, a meeting was held at the midnight by the assistant commissioner for labour, not in his office, but, in one of the hotels at pune and purported that the workmen had signed a settlement by accepting compensation and that the matter had come to an end. it is the further case of the petitioners that the appropriate government acted without jurisdiction in refusing to refer the matter for industrial adjudication. it is submitted that the issues pertaining to legality of retrenchment was required to be considered as there were more than 100 workmen. these issues should have been left for consideration by reference to the industrial tribunal and the appropriate government could not have decided the same. hence, the present petition.4. a reply has been filed on behalf of the respondent employer, by kali das sinha, general manager. it is firstly contended that the dispute between the workmen represented by the petitioner and respondent no. 3 were settled by settlement in conciliation in 1998 wherein all claims were settled with respondent no. 3. it is further submitted that the grievances are hopelessly barred by laches and are stale. it is submitted that the claim has rightly been rejected by a reasoned order.5. the first question that we have to consider is whether the action of the appropriate government in rejecting the application for reference can be said to amount to failure to exercise jurisdiction. section 12(5) requires that if the appropriate government choses not to make reference to give reasons thereof. in the communication of 10.6.2002, the reasons given are as under:1) i, agree with the opinion of conciliation officer that those workmen who have already arrived at a settlement with management their dispute should not be referred with.2) the workman who have referred the above dispute, all of them have accepted their legal dues as full & final settlement as per section 25ff.3) all the 21 workmen in above dispute in conciliation proceedings dt. 16/10/98 have entered into an agreement wherein they have accepted all their legal dues as full and final settlement. also they have stated that they hence forth do not have any legal dues pending from management nor do they have any demand of the same the workmen have also agreed that they will not refer this dispute henceforth refer any authority.4) the management has strongly stated that, they have not recruited any new workmen and whenever any extra man power was required then they would engaged temporary / contract labour to do the work and as soon as work was over they would be removed. the management also stated that under the above circumstances, it would not be possible is give permanent work is above employees, they have accepted their legal dues.5) the hon'ble supreme court has also stated that in dec. 1997 civil application no. 4852/1989 that a settlement arrived at in the course of conciliation proceedings will be binding on all workmen of establishment.once, there being reasons, normally, a writ court would not interfere in the exercise of its extraordinary jurisdiction.6. subsequent to this rejection, the petitioners once again moved by way of proceedings in conciliation. a failure report was submitted and a further order came to be passed on 10.11.2005 rejecting the reference by giving reasons as follows.1) in the present dispute, on earlier dispute no. 213/02, 317323/ 02, 69/02 to 78/02 by the pune zilla mazdoor sabha under section 2(a), the workmen have referred an industrial dispute and at that time the addl. commissioner of labour, pune has rejected to refer the dispute to labour court as per letter dtd. outward no. kau/ida/10103 dtd. 106/02.2) the workmen who were referred in para no. 1 above and workmen in the dispute before me are one and the same, only difference being that the workman have represented now through a union. the demand of workmen are the same `reinstatement along with full backwages'.3) in the industrial dispute no. 341/2002 is 356/2002 before industrial court, pune dtd. 16/8/2004 an out of court settlement has been arrived at between workmen and management, therefore as per industrial dispute act of 1947, the dispute of dismissal, suspension, termination, retrenchment etc. cannot be adjudicated by the office in lieu of full and final settlement done by workmen.7. the settled law on the point is that there is power in the government not to make a reference, once adequate reasons have been given. the writ court then normally does not exercise its extraordinary jurisdiction unless the reasons given are not germane and or the action is totally malafide or arbitrary and or the appropriate government decided issues which cannot be gone into by the appropriate government but by the industrial tribunal.8. as noted earlier, the appropriate government refused to make a reference by order dated 10.6.2002. that order was not challenged. that by itself however is no bar as per the settled law. a union is not prevented from raising a fresh demand as long as there is subsequent material and or the like. it is always open to the appropriate government in such circumstances to consider the same. however, in the instant case, reasons given while rejecting the second reference are, firstly that, earlier reference was rejected. the same disputes were in the earlier reference and there has been out of court settlement between the individual workmen and the employer.9. the supreme court in the case of nedungadi bank ltd. v. k.p. madhavankutty and ors. reported in : (2000) 2 supreme court cases 455 has observed that the power to make a reference should be exercised reasonably and in the rational manner and not in mechanical fashion. inspite of absence of a statutory limitation period, such power cannot be exercised to revive settled matters or to refer stale disputes. where a dispute becomes stale, it would depend on the facts and circumstances of each case. in the instant case, the services were retrenched on 1.4.1998. a settlement was arrived at on 16.10.1998. the first reference was rejected on 10.6.2002 and the second reference was rejected on 10.11.2005.10. our attention was also invited to the judgment in the case of haryana state coop. land development bank v. neelam reported in : (2005) 5 supreme court cases 91. there also one of the issue was the long delay in approaching the labour court. dealing with the issue of delay, the court observed as under:13. in ajaib singh the management did not raise any plea of delay. the court observed that had such plea been raised, the workman would have been in a position to show the circumstances which prevented him from approaching the court at an earlier stage or even to satisfy the court that such a plea was not sustainable after the reference was made by the government. in that case, the labour court granted the relief, but the same was denied to the workman only by the high court. the court referred to the purport and object of enacting the industrial disputes act only with a view to find out as to whether the provisions of article 137 of the schedule appended to the limitation act, 1963 are applicable or not. although, the court cannot import a period of limitation when the statute does not prescribe the same, as was observed in ajaib singh but it does not mean that irrespective of the facts and circumstances of each case, a stale claim must be entertained by the appropriate government while making a reference or in a case where such reference is made the workman would be entitled to the relief at the hands of the labour court.11. the learned counsel for the union has sought to draw our attention to the judgment of the supreme court in the case of oswal agri furane ltd. and anr. v. oswal agro furane workers union and ors. reported in 2005 i clr 816 to contend that if settlement is arrived at in contravention of the provisions of law, then in that event such settlement would not be binding and could be challenged.12. in the instant case, we are dealing with a settlement under section 2(p) of the industrial disputes act. the individual workmen had filed complaints under the provisions of the m.r.t.u. & p.u.l.p. act. during pendency of the complain, the settlement under section 2(p) came to be signed and where the individual workman accepted the compensation. the fact whether there were more than 100 workmen is not established by the material on record. this court will not embark on fishing inquiry into that aspect. prima facie the burden was on the petitioner to establish the jurisdictional fact. in absence of any material it is not possible to call upon the respondent to discharge that burden.13. for all the aforesaid reasons, we find no merit in the petition. rule is discharged. no order as to costs.