M.D., Co-operative Sugars Ltd. Vs. Secretary, Palghat District Progressive Sugar Workers Union and ors. - Court Judgment

Ramakrishnan, J.

1. The correctness of the decision of a learned single Judge reported in Mohanakumaran Nair v. Hindustan Latex Ltd., (1987-II-LLJ-318) (Ker) is incidentally under challenge in this Original Petition. Finding that there is considerable force in the challenge raised against the decision, one of us (Rama Krishnan, J.) has referred this Original Petition for decision by a Division Bench. It is thus this Original Petition is coming up before us.

2. Petitioner is the Managing Director of the Co-operative Sugars Limited, a co-operative society registered under the Co-operative Societies Act (hereinafter referred to as 'the society')- The main challenge in the Original Petition is against Ext. P1 award dated October 29, 1987 passed by the fourth respondent-Industrial Tribunal, Kozhikode in ID 10 of 1985. The first respondent is the Secretary of Palghat District Progressive Sugar Workers Union (for short 'the union1) at whose instance, the dispute which was the subject matter of ID 10 of 1985, was referred by the government to the fourth respondent. Second respondent is a worker under the Society and a member of the first respondent-union. Third respondent is another worker in the service of the society. He has been impleaded as a party who is likely to be affected by the implementation of the award. The main prayer in the Original Petition is to quash Ext.P1 award and to grant certain consequential reliefs.

3. It is necessary and useful to note the background in which the dispute which was the subject matter of ID 10 of 1985 was raised by the first respondent-union even at the outset.

4. Way back in 1972, an industrial dispute arose between the management of the society and their workmen represented by four unions, namely, (1) Palghat District Sugar Workers Union (CITU); (2) Co-operative Sugars Chittur Employees Association (INTUC), (3) Chittur Co-operative Sugars Employees Union (AITUC) and (4) Palghat District Progressive Sugar Workers Union regarding the finalisation of the seniority list of the workers employed in the society. The dispute was settled as per a memorandum of settlement dated January 9, 1973 signed in the presence of Deputy Labour Commissioner, Kozhikode. As per the memorandum of settlement, the management of the society published a provisional seniority list of the employees working in the society and in another concern owned by the society inviting objections, if any, regarding the seniority from the workmen. As per Clause (11) of another memorandum of settlement dated January 23, 1973 arrived at before the Joint Labour Commissioner, Kozhikode between the management and the trade unions functioning in the society at the relevant time, a committee was constituted to discuss the objections received from the workmen to the provisional seniority list already published and to take appropriate decisions in the matter. Accordingly, it would appear that the committee held meetings on January 28, 1975, February 15, 1975, February 24, 1975 and February 26, 1975 and unanimously took a decision to effect certain changes in the provisional seniority list. But, before finalising the seniority list, the unions functioning in the society submitted a strike notice dated June 29, 1979 and July 26, 1979. As a result, the matter of settlement of seniority was taken up for discussion only in a joint conference of the parties held by the Labour Commissioner on August 3, 1979. After the discussion, a memorandum of settlement was arrived at regarding the procedure to be followed in the matter of finalisation of the seniority list. As per Clause (1) of the said memorandum of settlement dated August 3, 1979, the finalisation of seniority of the workmen of the society was left to be decided by Deputy Labour Commissioner, Trichur and his decision thereon was agreed to be final and acceptable to all the parties. Pursuant to the above clause in the memorandum of settlement dated August 3, 1979, with a view to scrutinising the provisional seniority list and to hear the concerned parties before finalisation of the seniority list, the Deputy Labour Commissioner, Trichur held joint discussions with the concerned parties on August 22, 1979, November 8, 1979, November 29, 1979, December 20, 1979 and December 31, 1979. In the last conference held on December 31, 1979, in which the first respondent-union alone did not attend, the management and all other unions who were parties to the proceedings arrived at a settlement and finalised the seniority list of the employees settling all the inter se disputes except in the cases noted in the terms of settlement recorded and signed by all the parties to the proceedings except the first respondent. Ext. P-9 is the settlement so reached at the conference held on December 31, 1979. Accepting the settlement reached as a result of the conference held by the District Labour Officer, Palghat, the Deputy Labour Commissioner, Trichur has pronounced on January 1, 1980 his decision which is also produced as part of Ext. P-9 at pages 37 and 38 of the Original Petition. Ext. P-9 has been signed by the representatives of the management and three other unions functioning in the society except the first respondent. Clause (1) of Ext. P-9 terms of settlement so recorded and signed by the representatives of the management and the unions is thus :

'The revised seniority list as prepared by the Management taking into consideration the various unanimous decisions arrived at in the meetings of the Committee constituted as per Clause 11 of the Memorandum of settlement dated January 23, 1975 referred above and the various terms agreed to before the Deputy Labour Commissioner, Trichur and scrutinised by the unions is accepted as the final seniority list of the employees of the Co-operative Sugars Ltd., Chittur and the Chiceps Distillery, except Assistant Accounts Officers M/s. K. Ramaswamy and K. Mukundan and Sri K. Bhaskara Menon, Fitter-in-charge and Sri G. Ramakrishnan Achari, Head Fitter. The said final seniority list is appended as Annexure to this settlement.'

5. It was thereafter the second respondent has again raised a dispute regarding the seniority assigned to him in the final list of seniority published an the basis of Ext. P-9 settlement through the first respondent-union. According to him, the seniority assigned to him in the final seniority list is incorrect. Second respondent claimed that he was entitled to be appointed as Grade I Fitter with effect from April 1, 1972. Since such posting was denied to him illegally, he is entitled to the salary and allowance of a Grade I Fitter with effect from April 1, 1972. The prayer of the second respondent was to pass an award declaring his due seniority and giving him a rank above A. M. Joseph and A. P. Mohammed Ali with all monetary benefits. Since the management has opposed the claim put forward by the second respondent, Government has referred the dispute for settlement in accordance with law by the fourth respondent.

6. Before the fourth respondent, the management opposed the claim contending that when the seniority dispute existing between the workers of the society was settled by a conciliation settlement, it binds not only the workers represented by the unions who are 'signatories thereto but also to other workers by virtue of Section 18 of the Industrial Disputes Act. As such, so long as Ext. P-9 settlement stands, the second respondent is bound by the terms of that settlement. In the light of Ext. P-9 settlement, the fourth respondent has no jurisdiction to entertain or decide the dispute raised by the second respondent through the first respondent-union regarding his seniority since such a dispute cannot be raised in law. On the merits also, the management has contended that the claim of the second respondent that he is senior to other workers concerned in this dispute and seniority should be restored with effect from April 1, 1972 is unsustainable in law. A further contention was also raised to, the effect that the four other workmen who are likely to be affected by the decision to be taken by the fourth respondent have not been impleaded in the proceedings.

7. Overruling the objections raised by the society, fourth respondent has held that Ext. P-9 will not bind the second respondent and four other workers. Further, the claim of the second respondent over the four other workers has also been upheld by the fourth respondent as per the impugned award. Second respondent was found to be entitled for restoration of his seniority above the other workers with effect from April 1, 1972 with all monetary benefits.

8. Learned counsel for the petitioner-society has reiterated the contention that so long Ext. P-9 settlement stands, it will bind all the workers in the service, of the society and as such second respondent was not entitled to raise a dispute regarding seniority which was finalised as per Ext. P-9 settlement. As such, the fourth respondent was not haying jurisdiction either to entertain or to decide the dispute raised by the second respondent through the first respondent. Fourth respondent should have declined to grant any relief to the second respondent. Reliance placed by the fourth respondent on the decision reported in Mohanakumaran Nair v. Hindustan Latex Ltd. (supra) is unjustifiable. Learned counsel also submitted that the decision to the extent it has held that the dispute is between some of the workmen on the one part and some other workmen on the other part, there cannot be a settlement of such a dispute without the concurrence of all workmen who are interested in the dispute is. a proposition of law which is unsustainable in the light of the provisions contained in the Industrial Disputes Act and the various decisions of the Supreme Court on the point and as such it requires reconsideration. The decision rendered by the fourth respondent that the second respondent is the senior-most Assistant Fitter as on April 1, 1972, is perverse, illegal and unsustainable for the reason that none of the other workmen (four in number), who are likely to be affected by the said decision, were impleaded in the proceedings. The decision of the fourth respondent regarding the merit of. the claim put forward by the first respondent-union on behalf of the second respondent was also challenged as perverse and illegal.

9. Respondents land 2 alone have entered appearance and contested the claim raised in the Original Petition. On behalf of Respondents land 2, it was strenuously contended that Ex. P-l award is fully legal and justifiable and no interference is called for with the same in this Original Petition. It was submitted that there is no merit in the: submission of learned counsel for the petitioner that the decision reported in Mohanakumaran Nair v. ''Hindustan Latex Ltd. (supra) requires reconsideration. It was pointed out that the decision in Mohanakumaran Nair's case (supra) is really based upon the principle laid down in an earlier Division Bench decision of this Court reported in M. R. Workmen v. Labour Commissioner 1965 KLT 35. It was argued that unlike in cases where the dispute relates to matters affecting the workers in general, here the dispute is in relation to matters touching only few of the workers' and as such settlement cannot be reached unless all the affected parties agreed to it. It will be a misnomer to call such arrangements reached between the management and some of them binding on all the workmen including the workmen who have not agreed to such arrangement. Even if any such arrangement has been made and treated as a settlement reached for the purpose of Section 18 of the Industrial Disputes Act, still it can only be considered as an unjust and unfair settlement. In fact, the fourth respondent, in this case, has found Ext. P-9 settlement to be an unjust and unfair settlement. As such, even if it is held that Ext. P-9 is liable to be treated as a settlement reached in the course of conciliation proceedings, still it may not be binding on the second respondent who was not a party to the said settlement either in person or through his union. The findings on the merit of the claim for seniority was also sought to be supported on the basis of the service particulars of the second respondent and other interested workers. On the basis of the above contentions, it was submitted that the petitioner is not entitled to get any of the reliefs prayed for in the Original Petition.

10. The main question to be considered is whether the settlement of a dispute relating to the inter se seniority of a few workmen employed in an establishment reached in the course of a conciliation proceedings with due notice to all the workmen through their respective unions, but without the concurrence of one of the unions in which one of the workmen affected by the settlement is a member, will be binding on all the workmen concerned including the workman whose union has not concurred in the settlement.

11. The Tribunal has, in this case, held that such a settlement will not be binding on the disputing workman who has objected to the terms of the settlement through his union. Such a finding was entered solely on the basis of the decision in Mohanakumaran Nair's case (supra), the correctness of which has been challenged by learned counsel for the petitioner in this Original Petition. As such, the correctness of the view taken by the Tribunal on the point in Ext. P1 award will depend upon the correctness of the decision in the above case. After finding that the settlement will not be binding on the second respondent, the Tribunal has, in detail, gone into the merits of the claim and has found that the claim for restoration of seniority with effect from April 1, 1972 put forward by the second respondent is justifiable. The Tribunal has passed an award on the basis of the said finding and has directed the petitioner to take immediate steps to restore the seniority of the second respondent and to pay all his monetary benefits.

12. The question whether the finding of the Tribunal that the second respondent is entitled to restoration of his seniority with effect from April 1, 1972 is unsustainable or not need be gone into only if it is found that the other finding of the Tribunal is legally sustainable. As such, we may consider first the main question.

13. We may even at the outset point out that there is no dispute about the fact that a settlement was in fact reached in the course of Conciliation proceeding of the dispute regarding finalisation of the seniority of the entire employees of the petitioner-Company and another concern owned by it which was pending from 1972 onwards by Ext. P9 settlement signed by the representatives of the management and representatives of the various unions who have participated in the proceedings except the first respondent-union. There is also no case that Ext. P9 is a settlement reached in violation of any of the provisions of the Act or Rules or that it is one reached without notice to the first respondent or by practising fraud or collusion. The only-contention is that the said settlement will not bind the second respondent as the union in which he is a member was not a consenting party to the above settlement. It is also an admitted fact that the Conciliation Officer has counter-signed the memorandum of settlement signed .by the representatives of the management and the unions and containing the terms of settlement on January 1, 1980. It is also relevant to note that all the employees except the second respondent have accepted the terms of the settlement and have not taken so far any steps either to challenge the settlement as unjust or unfair or to terminate it. The only contention seriously urged is that the settlement in this case cannot be treated as a settlement at all in view of the fact that the second respondent and his union have not concurred in the settlement, and that taking note of the nature of the dispute as one regarding the inter se seniority of four or five employees, it cannot be treated as a just and fair settlement which alone can be held to be binding on all workmen under Section 18 of the Act even treating it as a valid and binding settlement reached in the course of conciliation. Learned counsel also submitted that the principle of extended application of settlements reached in the course of conciliation proceedings will have application only in the case of settlements reached with reference to disputes affecting the workmen generally and not in cases where the dispute affects only individual workman as in this case. Learned counsel for the petitioner has, on the other hand, contended that Ext.P9 is a valid settlement binding on all including Respondents 1 and 2 that the award passed solely based on the principles laid.down in Mohanakumaran Nair's case (supra) is unsustainable in law;.

14. Having due regard to the rival contentions raised by the parties in this Original Petition, we think that the only question to be considered is whether any distinction can be legally made between a dispute which affects only an individual workman in contrast to a dispute affecting generally the entire workmen of a concern or a group of workmen of the concern. The view taken by the learned single Judge in Mohanakumaran Nair's case (supra) would directly support the contention of learned counsel for the second respondent that a distinction has to be made between settlement of a dispute pertaining to an individual workman or a small group of workmen from disputes affecting the workmen generally. Learned single Judge has proceeded on the basis that when the particular dispute affects only one or a few of the workmen, the settlement reached without the concurrence of such workman or workmen either directly or through their unions, even if it was in the course of conciliation proceedings will not bind such workman or workmen. The main question, therefore, is how far the above view is sustainable in law. If Ext. P9 is found to be valid and binding on Respondents 1 and 2, a further question may also have to be considered.as to whether the Tribunal was having jurisdiction to adjudicate and decide the dispute once again inspite of the fact that the dispute was settled finally by Ext.P9.

15. As the controversy mainly relates to the nature of the dispute and the binding effect of a settlement reached in the course of conciliation proceedings, we may usefully quote the definition of the words 'industrial dispute', 'settlement' and the provision indicating the class of persons whom the settlement reached in the course of conciliation proceedings binds.

'Section 2(k)-- 'industrial dispute' means any disputeor difference between employers andemployers, or between employers andworkmen,-or between workmen and workmen,which is connected with the employment ornon-employment or the terms of employmentor with the conditions of labour, of any person.Section 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 than 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 authorised in this behalf by the appropriate Government and the conciliation officer.

Section 18(3)--A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under Sub-section (3-A) of Section 10A or an award of 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.'

16. In New India Motors (P) Ltd v. K.T. Morris, (1960-I-LLJ-551) the Supreme Court, while considering the definition of the word 'industrial dispute', has stated thus :

'It is well settled that before any dispute between the employer and his employee or employees can be said to be an industrial dispute under the Act it must be sponsored by a number of workmen or by a Union representing them. It is not necessary that the number of workmen of the union that sponsors the dispute should represent the majority of workmen. Even so, an individual dispute cannot become an industrial dispute at the instance of the aggrieved individual himself. It must be a dispute between the employer on the one hand and his employees acting collectively on. the other.'

In the very same judgement, the Supreme Court has with reference to Section 18(3) of the Act observed thus :

'...... the award passed in an industrial dispute raised even by a minority union binds not only the parties to the dispute but all employees in the establishment or part of the establishment, as the case may be, at the date of the dispute and even those who may join the establishment or part subsequently. Thus the circle of persons bound by the award is very much wider than the parties to the industrial dispute.'

Analysing the provisions in Section 18(3) of the Act, the Supreme Court has held that 'a settlement arrived at in the course of conciliation proceedings is binding not only on the actual parties to the industrial dispute but also on the heirs, successors or assigns of the employer on the one hand and all the workmen in the establishment present or future on the other. In extending the operation of such a settlement beyond the parties thereto, Sub-section (3) to the Section departs from the ordinary law of contract and gives effect to the principle of collective bargaining (See Jhagrakhan Collieries v. G.C. Agrawal, (1975-I-LLJ-163) (SC). In B.R.P.S. Parishad v. Indian Oil Corporation Ltd. (1991-I-LLJ-46), Ahmadi, J. (as he then was) had, with clarity, explained the scope of Section 18(3) of the Act as follows:

'A settlement arrived at in the course of conciliation proceedings with a recognised 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. To that extent it departs from the ordinary law of contract. The object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. There is an underlying assumption that a settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made binding not only on the workmen belonging to the union signing the settlement but also on others. That is why a settlement arrived at in the course of conciliation proceedings is put on par with an award made by an adjudicatory authority.'

In an earlier decision in Bata Shoe Co. (P) Ltd. v. D. N. Ganguly, (1961-I-LLJ-303), Wanchoo, J., dealing with Sections 12 and 18 of the Act, has observed thus:

'It seems clear that a settlement which is made binding under Section 18 on the ground that it is arrived at in the course of conciliation proceedings is a settlement arrived at with the assistance and concurrence of the conciliation officer for it is the duty of the conciliation officer to promote a right settlement and to do everything he can to induce the parties to come to a fair and amicable settlement of the dispute. It is only such a settlement which is arrived at while conciliation proceedings are pending that can be binding under Section 18 of the Act.'

17. It is clear from the above provisions of the Act and the observations of the Supreme Court that what imparts to the dispute of a workman or individual dispute, the character of 'industrial dispute' is the fact that when it is espoused by other workmen or a union of workmen, it becomes a dispute in which such workmen or union is interested or concerned and it affects the workmen as a class. It becomes then a dispute between the employer and the workmen generally or a union of workmen. It ceases to be an individual dispute in which one workman alone is interested or concerned. It becomes a collective dispute if we may say so, with the employer on the one hand and the entire establishment or part of the establishment on the other. An individual dispute will not fall within the scope of the definition of the word 'industrial dispute' as held by the Supreme Court in various decisions and to fall within the scope of the definition what is required is that an individual dispute must be espoused by a number of workmen, though it is not necessary that a numerical majority of the total number of workmen under the employer must espouse it. When a dispute is espoused by a number of workmen or by a union representing them, an element of collective bargaining which is the most essential feature of modern trade union movement and industrial law gets involved into it and it then becomes an 'industrial dispute' as defined in Section 2(k) of the Act. The dispute then loses its birth mark and becomes an industrial dispute in contrast to a mere individual dispute which cannot be taken note of as an industrial dispute for the purposes of the Act. When an individual dispute so espoused is settled on the basis of collective bargaining through conciliation, there may not be any justification thereafter for making a distinction between such a settlement and a settlement reached in a dispute affecting the workmen generally; with reference to the original nature of the dispute as an individual dispute and on that basis to hold that unless the individual workman agrees to the settlement, the settlement reached cannot be called a settlement at all. It is also clear that a settlement reached in the course of conciliation proceedings of an industrial dispute with the assistance of a Conciliation Officer and certified by him to be a fair and just settlement, will be binding generally on all the workmen under Section 18(3) of the Act even if all the workmen were not parties to the dispute or have not concurred with the settlement so reached.

18. From the definition of the word 'settlement', it is evident that settlements can be of two kinds (i) a settlement arrived at in the course of conciliation proceedings under the Act, and (ii) a written agreement between the employer and the workmen arrived at otherwise than in the course of conciliation proceedings. In this case, we are only concerned with the settlement reached in the course of conciliation proceedings. Keeping in mind the above basic aspects of the law regulating conciliation proceedings and reaching of settlements in industrial disputes, we may examine how far the view take by the learned single Judge in Mohanakumaran Nair's case (supra) is sound and sustainable.

19. Turning to the decision in Mohanakumaran Nair v. Hindustan L. Ltd. (supra), we may extract the main reasoning on which the entire decision rests. It is contained in the following excerpts from paragraph 5 of the judgment:

'If the dispute is as between the employer and the workmen a settlement reached in conciliation proceedings between some only of the' workmen and their employer is a settlement under the Act having extended application to the other workmen also. But when the dispute is between some of the workmen on the one part and some other workmen on the other part, can there be a settlement of that dispute without the concurrence of those workmen? It would be illogical to call it a settlement when the disputing workmen do not agree to the terms acceptable to the other set of workmen. Any such settlement unilaterally made between the employer and one faction of the workmen cannot have the legal incidences envisaged in the Act, if the dispute is actually between two factions of workmen in the same establishment. If one faction of workmen in such a dispute persists in refusing to concur with the terms acceptable to the other faction, the Conciliation Officer may report to the Government as provided in Section 12(4) of the Act. If the Conciliation Officer proceeds to make a memorandum of settlement signed by the employer and representatives of one faction of the employees in such a dispute, the document cannot be called a settlement under law.'

It is clear from the above extract that the learned Judge has made a clear distinction between a dispute vis-a-vis the employer and the workmen generally and a dispute between two groups of workmen. In the case of dispute between two groups of workmen, the learned Judge has taken the view that no settlement through a conciliation proceedings can be arrived at unless the two groups of workmen agree to the terms of the settlement. Learned Judge found it illogical to call the so-called settlement a real settlement when the disputing workmen do not agree to the terms acceptable to the other set of workmen. It is on the above reasoning that the learned Judge held that such settlement unilaterally reached between the employer and one faction of the workmen cannot have the legal incidences envisaged in the Act especially the binding effect provided under Section 18(3) of the Act.

20. We have already found that the dispute arising out of the grievance of an individual workman or a group of workmen either between the employer or between the employees becomes an 'industrial dispute' when the dispute is espoused by a group of workmen or a union and thereafter it is difficult to make any distinction between such a dispute and a dispute which affects the workmen generally solely on the basis that the dispute originated from a grievance of an individual workman or only an individual workman will be affected by the result of the settlement. When a dispute arising out of grievance of an individual workman is espoused or taken up by a union either with the employer or the opposing group of workmen and the employer and settled in the course of conciliation proceedings, it becomes a settlement binding on all workmen irrespective of the fact that the individual workman whose grievance was the origin of the dispute is not satisfied with the ultimate settlement reached or is opposing the same, if such settlement is found to be just and fair. If all other workmen and the employer have found the settlement acceptable and the Conciliation Officer has also found it just and reasonable, it will only be just and legal to put an end to the dispute by accepting the settlement as one reached in the interest of the workmen generally for the sake of industrial peace. Such a settlement of an industrial dispute becomes legally acceptable in the scheme of the provisions contained in Section 2(k), 2(p) and 18(3) of the Act even if the individual workman who has originally raised the dispute or some of the other workmen find it not acceptable provided the Conciliation Officer finds it not just and fair and endorses the settlement. We find sufficient statutory or legal justification for accepting such settlement as valid and binding under Section 18(3) of the Act on all workmen who are parties to the dispute even if one of the other workmen opposes it or does not occur with it. Apart from such statutory or legal justification for accepting such settlement as valid and binding on all workmen despite the opposition of one or a group of workmen, if logic is needed we venture to say that industrial dispute may arise not only on the basis of problems affecting all workmen but also on the basis of grievances of individual workmen if they are espoused by co-workmen and in that event it may endanger industrial peace if not settled at the earliest by conciliation proceedings or otherwise under the Act. That, in our view, can alone be the reason or logic for allowing such individual disputes to be treated as an industrial dispute liable to be settled under the Act. In the light of the principle of law underlying the scheme of the provisions in the Act dealing with settlement of industrial dispute in the course of conciliation proceedings as indicated above, we find no difficulty in finding a logical basis also for accepting the above view canvassed for by learned counsel for the petitioner in this case.

21. This, in fact, is the view highlighted by M.P. Menon, J. in the decision reported in Manoharan Nair v. 'State of Kerala 1982 K.LT 732 which was distinguished by the learned single Judge in Mohanakumaran Nair's case (supra). The learned Judge has tersely put the matter thus :.

'.......I have not been referred to any of the provisions of the Industrial Disputes Act and the Rules framed thereunder obliging a conciliation officer to countersign only those settlements where the consenting union officials represent a majority. So far as I know, a settlement made with a minority will bind all the workmen of the establishment when it is countersigned by the conciliation officer, unless it is established that the dispute related to some special section of the workers with a special kind of demand, and that the consenting parties were in no way representative of such workmen. In other words, only a collusive settlement designed to defeat certain kinds of claims, and entered into with those who could not speak for even a small section of the workmen interested, could be an exception to the rule. (See Ramnagar Cane and Sugar Co. v. Jatin Chakravarthy (1961-I-LLJ-244).'

The only reason stated by the learned Judge for distinguishing the above case is the fact that the dispute in that case was one affecting the workmen generally and as such distinguishable from the dispute in the case dealt with by the learned Judge. Of course, the learned Judge has also pointed out that in Manoharan Nair's case (supra) itself, an exception has been carved out by M.P. Menon, J. in cases where the dispute settled is one relating to some special section of the workers with special kind of demand and the dispute in the case dealt with by the learned Judge is one coming within that exception. As we have already held that no such distinction could be made, we are of the view that the decision in Manoharan Nair's case (supra) could not have been distinguished justifiably for the reasons given by the learned Judge in Mohanakumaran Nair's case (supra). In Manoharan Nair's case (supra), the exceptional case indicated by M. P. Menon, J. was in regard to a settlement reached with respect to a dispute relating to some special section of workers with a special kind of demand and the consenting parties were in no way representative of all such workmen. We find that the situation postulated in the exception carved out by M. P. Menon, J. is not present in this case. The dispute in this case was admittedly a dispute between a group of workmen regarding their inter se seniority and settlement was one reached between the unions representing all the workmen concerned except that of the second respondent which union has also admittedly participated in the deliberation throughput the proceedings. Thus the settlement reached in this case was one between the employer and the unions representing all the workmen concerned except one and his.union. As such, the dispute cannot be treated as a case falling in the exceptional category of cases indicated by M. P. Menon, J. in Manoharan Nair's case (supra).

22. Similarly, we find that the reliance placed by learned single Judge on the Division Bench decision reported in M.R. Workmen v. Labour Commissioner 1967 KLT 35 cannot also be justified. As pointed out by M. P. Menon, J. in Manoharan Nair's case (supra) we find that the decision in M.R. Workmen's case (supra) is clearly distinguishable for the reason that it was a settlement reached without issuing notice to one of the two unions who Were arrayed as parties to the conciliation proceedings unlike in this case where all the unions had notice and have participated in the proceedings except on the last date on which day the terms of the settlement were actually drawn up and signed by the parties. As such, the ratio of the decision in M. R. Workmen's case (supra) could not have been justifiably relied upon by the learned single Judge in support of the view taken by him in Mohanakumaran Nair 's case (supra).

23. We must, at this stage, refer to the decisions referred to and relied upon by learned counsel for the contesting respondents in support of his submissions, namely, Bata Shoe Co. (P) Ltd. v. D. N. Ganguly (supra), Indian Oxygen Ltd. v. Workmen (1979-I-LLJ-266) (SC), Tata Engg. & Locomotive Co. Ltd. v. Their Workmen (1981-II-LLJ-429) (SC) and A.V. Nachane v. Union of India (1982-I-LLJ-110) (SC). On a careful consideration of the above decisions, we do not think that the said decisions would help the contesting respondents to support the view taken by the learned single Judge in Mohanakumaran Nair's case (supra) for the acceptance of which learned counsel has pleaded before us. The above cases referred to by learned counsel are all cases where the Supreme Court has found that no settlement was reached in accordance with the provisions contained in the Act and concurred by the Conciliation Officer. As such, we find that it is not necessary to discuss the above decisions separately in detail.

24. For the reasons indicated above, we find ourselves totally unable to agree with the view taken by the learned single Judge Mohanakumaran Nair v. Hindustan L Ltd (supra). We accordingly, over-rule the said decision.

25. Since the only basis on which the Tribunal has found that Ext. P-9 settlement is not binding on the second respondent is the reasoning contained in the decision in Mohanakumaran Nair's case (supra), which we have over-ruled as per this judgement, it has to be held that the Tribunal was not justified in law in entering such a finding and the finding is liable to be set aside. In the circumstances, we would set aside the finding entered by the Tribunal in Ext. P-1 award that Ext, P-9 settlement will not be binding on the second respondent and as a necessary consequence, we have to hold that Ext. P-9 is a settlement of an 'industrial dispute' validity reached in the course of a conciliation proceedings which has become enforceable and as such binding on all the workmen to the dispute and other workmen and unions including Respondents 1 and 2 as contended by the petitioner.

26. As we have already pointed out, there is no challenge raised by the second respondent against Ext. P-9 settlement on the ground that it is not a just and fair settlement. There is also no case that it is a settlement reached as a result of fraud or collusion practised by any of the parties to the dispute. There is also no case that it is a settlement reached without following the procedure prescribed for conducting conciliation proceedings. The only case put forward by the second respondent is that it is settlement reached without the concurrence of himself and his union and as such it has to be held that Ext. P-9 settlement is not a just and fair settlement. That alone is the finding of the Tribunal also. In the view which we have taken regarding the validity and binding nature of Ext. P-9, it may not be possible to hold that the settlement reached is not just and fair only for the reason that Respondents 1 and 2 have not concurred with it.

27. Taking note of the nature of the subject matter of the dispute, Ext. P-9 found to be valid and binding by us, cannot be treated as one reached a specific period or as one terminable in accordance with the provisions contained in Section 19 of the Act. Settlement of disputes like the one on hand reached duly can only be treated as a settlement reached once and for all and not for a limited period or terminable after a period. It is also relevant to note that there is no case for the second respondent that he has terminated Ext. P-9 settlement by issuing necessary notice as contemplated under Section 19(3) of the Act. As such, in the light of our finding that Ext. P-9 settlement is a valid settlement reached in the course of conciliation proceedings and is binding on Respondents 1 and 2, we have to hold that there was no industrial dispute either to be referred by the Government to the Tribunal and to be adjudicated by the Tribunal. The dispute relating to inter se seniority of the second respondent and other workers concerned were settled finally as per Ext. P-9 settlement and in the light of the said settlement no reference could have been validly made by the Government to the Tribunal and the Tribunal ought to have upheld the contentions of the petitioner to that effect and should have declined the prayers of the second respondent holding that the inter se seniority between himself and other workers concerned was settled validity as per Ext. P-9 settlement and the same is binding on him and neither the second respondent nor the first respondent union was legally entitled to raise a dispute again regarding the same question. Unless an 'industrial dispute' exists legally and the same is duly referred, aTribunal may not have jurisdiction to adjudicate and render a decision in the matter. The mere fact that a reference is made may not confer on a Tribunal jurisdiction to adjudicate and decide the matter. If jurisdiction is disputed on the ground that no industrial dispute was in existence to be : referred to or that the industrial dispute referred was duly settled already, the Tribunal may have to decide the said question of jurisdiction first as a preliminary question before proceeding to adjudicate the dispute on merits. If the Tribunal finds either that no 'industrial dispute' exists legally or that it has been duly settled as in this case, it has the jurisdiction and duty to decline to go into the matter referred to and decide the same on merits. Reference in such cases would be incompetent. The above legal position is clear from the following decisions: Sindhu Resettlement Corporation v. I.T. (1968-I-LLJ-834) (SC), Employers, Thungabhadra Industries Ltd. v. Workmen (1973-II-LLJ-283) (SC), Karnal Distillery Co. Ltd. v. Their Workmen (1967-I-LLJ-577)(Pun-jab) and British India Corporation v. State of Punjab (1968-II-LLJ-850) (Punjab).

28. In the light of the above discussion, we would set aside Ext. P-1 award as one passed illegally and without jurisdiction. We would, accordingly, allow the Original Petition. There will be no order as to costs.