Partha Sarathi Rej and anr. Vs. State of West Bengal and ors. - Court Judgment

Excerpt:
- dibyendu bhusan dutta, j.1. the instant writ petition is directed against a tripartite settlement dated february 18, 1994.2. a union and its office bearer are the writ petitioners. the respondent no.3 company has a commercial establishment consisting of accounts dept., personnel dept., engineering purchase dept., drawing office etc. attached to its manufacturing unit at rishra. the petitioner union claims that it represents the majority of the employees of the respondent no.3 at rishra. the commercial establishment of the respondent company at rishra was registered under the shops and establishments act, 1963. for the employees of the commercial establishment of the respondent company at rishra, the total weekly working hours were 36 while the total number of working days in a week was 5. besides the petitioner union, there are two other unions operating at the rishra unit of the company viz. respondents no. 5 and 6. on the expiry of the long term settlement dated january 12, 1989, all the three unions including the petitioner union submitted their charters of demands for revision of grades, scales of pay and other conditions of service. in course of separate discussions with the other two unions, the company gave indications that it was going to increase the total weekly hours from 36 to 48 and sought their help in the matter. the said two unions are recognised by the company. the petitioner union, coming to know about such a move for changing the working hours, raised an industrial dispute before the respondent no. 2 by their letter dated january 17, 1994 requesting him for initiating a conciliation proceeding. the respondent no. 2 held discussions on charter of demands with other unions. but, it appeared that he was actively supporting the plea of the company with regard to the increase in the working hours. the petitioners took a stand not to accept the proposed increase in the working hours because such increase would be against the provisions of section 24 of the west bengal shops and establishments act. in spite of such objection of the petitioner, the respondent company entered into the impugned tripartite settlement with the other two unions incorporating the change in the weekly working hours from 36 to 48. it has been alleged by the petitioner that this settlement was in gross violation of section 24 of the west bengal shops and establishments act, 1963 and rule 57 of west bengal shops and establishments rules, 1964. the petitioners were not made parties by the respondent no. 2 since they were opposing the said settlement. the part played by the conciliation officer i.e. the respondent no. 2 for bringing about the settlement was a colourable exercise of power. he also acted in a highly motiviated, illegal and partisan manner for bringing about the impugned settlement in violation of section 24 of the west bengal shops and establishments act, 1963 and in violation of section 12 of the industrial disputes act.3. the respondent company opposed the writ application on filing an affidavit-in-opposition. it denied all the material allegations of the writ petitioners. its case, in substance, may be stated as follows. the petitioner union is an unrecognised minority union and the respondent no. 5 union is the majority union having more than 50 per cent of the workmen of the company. in terms of the tripartite settlement dated january 3, 1968, an employee enjoying 36 hours of duty in a week could have been asked to work for 48 hours a week by granting 3 advance increments in his pay scale and placing him in the plant grade. there were two separate sets of grades applicable to plant staff (48 hours a week) and office staff (36 hours a week). the plant staff grade was always higher than the corresponding office staff grade. the impugned settlement was reached with a view to bringing parity in the weekly working hours, the grades and holidays of the plant and office staff. the petitioner union came to know about the intention of the management to bring about the changes in the working hours of the office staff and raised industrial dispute with the additional labour commissioner after having 78 joint meetings with the management along with the two other recognised unions. the impugned settlement is not at all violative of the provisions of section 24 of the west bengal shops and establishments act or rule 57 of the west bengal shops and establishments rules. the settlement is advantageous to the employees inasmuch as it provides for four increments to the concerned employees against the existing practice of three increments in the past. as per settlement dated january 3, 1968 an employee who was appointed in 48 hours a week duty and subsequently transferred to 36 hours a week duty did not qualify for any increment on his re-transfer to the 48 hours a week duty. but by virtue of the current settlement, such employees have been granted 4 increments in their respective grades. the plant grades were higher than the office grades having higher increments and the office grade has been equalised to the plant grade. the petitioner union does not enjoy the support of any substantial number of workmen. the settlement was signed by the respondent union. overwhelming majority of the workmen have accepted the settlement and to be precise only 12 out of 981 employees who were covered by this settlement accepted the benefits under protest and the remaining employees accepted the benefits voluntarily without raising any dispute whatsoever.4. the petitioners virtually reiterated their stand already taken in the writ petition by filing affidavit-in-reply.5. mr. rathin bhaduri, learned counsel appearing on behalf of the petitioners, raised the following points. first, it was contended that the impugned settlement was not a valid settlement in view of the fact that the petitioner union, at whose instance the conciliation proceeding was initiated by the respondent no. 2, and, who was a party to the industrial dispute, was not a signatory to the settlement. secondly, it was contended that the settlement was bad in law in view of the fact that it purported to take away the advantages, rights and privileges that were being enjoyed by the employees of the commercial establishment of the company and were protected by the west bengal shops and establishments act. thirdly, it was urged that the settlement was legally ineffective inasmuch as it was violative of the provisions of section 24 of the west bengal shops and establishments act, 1963 and rule 57 of the rules framed thereunder. lastly, it was contended that the impugned settlement is liable to be quashed because of the fact that the terms of the settlement vis-a-vis the total weekly working hours and total weekly working days were not fair and reasonable.6. mr. partha saralhi sengupta, learned counsel appearing for the respondent company sought to repel the contentions of mr. bhaduri in the following manner. the impugned settlement was one which was arrived at in the course of conciliation proceeding and as such under section 18(3) it is legally binding on all the workmen. it is submitted that the fact that the petitioner union had not been agreeable to the terms of the settlement or the fact that it was not a party or signatory to the settlement would be of no moment. mr. sengupta further submitted that the question whether the petitioner union was a majority union or not is a disputed question of fact and the writ court is not competent to go into that question. according to mr. sengupta, the question whether the signatory unions viz. the respondents no. 5 and 6 represented majority of the workmen of the company is not also relevant. mr. sengupta further contended that there is an underlying assumption that a settlement reached through the help of a conciliation officer must be fair and reasonable and that, infact, the terms of the settlement were on the whole reasonable and fair. mr. sengupta submitted that a settlement cannot be weighed in any golden scale and the question whether it is just and fair has to be answered on the basis of principles-different from those which come into play when an industrial dispute is under adjudication. it is further submitted by mr. sengupta that the allegation of mala fide that has been sought to be made on behalf of the petitioner against the conciliation officer cannot at all merit any consideration in view of the fact that the particular conciliation officer has not been made a party so as to give him an opportunity to controvert the said allegation of mala fides against him. on the question of violation of the provisions of section 24 of the west bengal shops and establishments act or rule 57 of the rules framed thereunder, mr. sengupta argued that section 24 of the act and the corresponding rule 57 of the rules simply saves the rights or privileges to which any person employed in an establishment is entitled on the date of commencement of the act under any law or under any contract, custom or usage which was in force on that date, if such right or privilege is more favourable to him than any right or privilege conferred upon him by the act or the rules, as the case may be, or granted to him at the time of appointment. according to mr. sengupta, there is nothing in the west bengal shops and establishments act or the rules framed thereunder which gives them over-riding effect over the terms of settlement entered into in the courts of a conciliation proceeding under the industrial disputes act. the west bengal shops and establishments act or the rules, according to mr. sengupta, do not impose any embargo upon curtailment of the rights and privileges enjoyed by an employee prior to the commencement of the act or the rules and more advantageous than those granted by the act or that rules by virtue of any settlement in the course of a conciliation proceeding under the industrial disputes act. moreover, it is submitted that by virtue of the impugned settlement, the total weekly working hours and the total weekly working days meant for the employees of the commercial establishment of the company within the meaning of section 2(2) of the west bengal shops and establishments act do not exceed the maximum limit permissible under the act. lastly, it is submitted by mr. sengupta that the impugned settlement was, in effect, a non-statutory contract and in view of the fact that a majority of the workmen reaped the benefits of the settlement without raising any dispute whatsoever, it would not be proper for exercising the extraordinary jurisdiction under article 226 of the constitution to quash the settlement by a writ of mandamus as prayed for by the petitioner.7. in support of his contentions, mr. sengupta cited decisions (i) as division bench decision of the bombay high court in the case of association of chemical workers v. wahid ali and ors., reported in (1980-i-llj-276) (ii) a decision of the supreme court in the case of barauni refinery pragatisheel shramik parishad v. indian oil corporation limited, reported in (1991-i-llj-46) (sc) and (iii) unreported single bench decision of our high court in c.r. no 14803 (w) of 1984 (kalidas biswas and ors. v. burn standard & co. ltd. and ors.).8. ...... settlement, as defined in section 2(p) of the industrial disputes act 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. under section 4(1) a conciliation officer is charged with the duty of mediating in and promoting the settlement of industrial disputes. sub-sections (2) and (4) of section 11 prescribe the procedure and power of conciliation officer vis-a-vis a settlement, section 12 prescribes the duties of conciliation officer. under sub-section (2) of section 12, the canciliation officer shall, for the purpose of bringing about a settlement of the dispute without delay, investigate the dispute and all matters affecting the merits and right settlement thereof and may do all such things as he thinks fit for the purpose of including the parties to come to a fair and amicable settlement of the dispute. under sub-section (3) if a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the conciliation officer shall send a report thereof to the appropriate government or the officer authorised in this behalf by the appropriate government together with a memorandum of the settlement signed by the parties to the dispute. rule 68(2) of the west bengal industrial rules, 1958 specifies the person or persons by whom such memorandum of settlement shall be signed in the case of the employer or the workman. sub-section (4) deals with the contingency arising out of his failure to bring about the settlement. under sub-section (3) of section 18, a settlement arrived at in the course of conciliation proceedings under this act 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;(c) where a party referred to in clause (a) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates and(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.9. in brauni refinery pragatishell sharamik parishad v. indian oil corporation ltd. (supra) the supreme court held:'a settlement arrived at in the course of conciliation proceedings with a recognised majority union has extended application as it 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 employer 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 the others. that is why a settlement arrived at in the course of conciliation proceeding is put on par with an award made by an adjudicatory authority.'10. ina the bombay decision cited by mr. sengupta, it was contended on behalf of the union that section 18(3)(d) covers only such other workmen who are either members of no union or whose union displays indifference either by not responding to the notice of the conciliation officer or otherwise and cannot cover the workmen whose union displays active interest and was opposed to the settlement or terms thereof. it was also urged in that case that it would be a misnomer to call it settlement when negotiating union representing a section of the workmen opposes it and insist for better terms. on behalf of the respondent company, on the other hand, several decisions including two supreme court decisions in the case of ramnagar cane and sugar co. v. jatin reported in (1961-i-llj-244) and the case of tata chemicals v. workmen reported in (1978-ii-llj-22) were relied upon in the bombay case and it was contended that a settlement even with one of the many unions, brought about by conciliating officer would be such a settlement even when other unions choose not to accept it of actively oppose it. in the case of ramnagar cane one of the unions after taking part in the negotiations had walked out, indicating no interest in the proposals and the conciliation officer succeeded in persuading the other union to continue the talk and securing settlement of the dispute and the supreme court held that such a settlement with one of the unions where workmen happen to be represented by more than one union is a valid settlement within the meaning of section 12(3) and the settlement is binding under section 18(3)(d) not only on the workmen represented by the union signatory to such settlement but also other workmen represented by other union and also others who may not at all be represented by any union whatsoever. ratio of this case was affirmed in the subsequent supreme court decision in the case of tata chemicals. the bombay high court observed : 'the word settlement undoubtedly presupposes the participation and consent of all the interested parties. where workmen are members of the different unions, every union without regard whether represents a majority or minority section cannot but be considered to be so interested. however section 18(3)(d) appears to have been designed to meet some difficulties implicit in the collective bargaining with a floating army of workmen a few of whom may not choose to be the member of any union and, one or more unions may, for reason of its own, may not like to reach the settlement. legislature contemplates making such settlement binding even on such indifferent or unwilling workmen if the conciliation officer brings about it bona fide to ensure industrial peace. intervention of the conciliating officer, and his belief in the settlement being fair and reasonable appears to be the basis of this provision which presently takes into account the impossibility of satisfying every section.' it was further observed: 'it is true that in the case of ramnagar cane & sugar co. before the supreme court the union with whom the settlement was arrived at happened to represent the majority of the workmen then employed in the concern. the union which has chosen to walk out of the negotiating proceedings or had not taken part in the said negotiations happened only to represent minority of the workmen. that, however, does not appear to be the basis of the ratio of the judgment. according to all these cases, it is the intervention of the conciliation officer that makes the difference between the settlement that is reached in the course of the conciliation proceeding and the one reached otherwise than in course of conciliation proceedings.' it was further observed: 'the mere circumstances that workmen represented by the petitioner union are not signatories to the settlement or have not participated in the discussion resulting in the ultimate settlement by itself cannot invalidate the said settlement or making the settlement otherwise than in the course of conciliation proceedings nor can the same cease to be binding on the other workmen who are not represented by the signatory union.' i must say that i am in respectful agreement with the aforesaid observations of the bombay high court which apply to the facts and circumstances of our case.11. there is virtually nothing on record on the basis of which it can be argued that the conciliation officer did not act bonafide or did not apply his mind as to the reasonableness and fairness of the settlement nor is there anything on record so as to justify an inference that the terms of the impugned settlement were not fair and reasonable. the mere fact that by virtue of this settlement the total weekly working hours and the total weekly working days were increased from 36 to 48 and from five to five and a half respectively cannot ipso facto lead to the conclusion that the settlement was unfair and unreasonable. indeed, a settlement cannot be weighed in a golden scale. then again, the particular conciliation officer who brought about the instant settlement is not a party to the instant writ application and as such the petitioner cannot be heard to say that the conciliation officer acted mala fide or in a partisan manner in bringing about the instant settlement.12. thus, relying on the bombay decision reported in (1980-i-llj-276) and the supreme court decision reported in (1991-i-llj-46), it can be safely held in the facts and circumstances of this case that the impugned settlement does not suffer from any illegality or invalidity merely because of the fact that the petitioner union was not a signatory to the settlement or, for that matter, was not agreeable to the terms of the settlement whereby an increase in the working hours and the working days was effected. in view of the said two decisions, there would be no escape from the conclusion that the impugned settlement is a valid settlement effected in the course of a conciliation proceeding and is binding upon all the workmen including the workmen represented by the petitioner union. the question as to which of the three unions - whether the petitioner union or any of the two respondent unions represented the majority of the workmen at the time when the ; impugned settlement was effected would, indeed, be of no significance particularly when the relative benefits and disadvantages arising out of this settlement cannot be evaluated by this court in the exercise of the writ jurisdiction and it cannot be held on the basis of the settlement itself that the terms are unfair and unreasonable.13. it has been specifically averred in the affidavit-in-opposition filed on behalf of the company that out of as many as 981 employees, barring only 12 employees, all the employees accepted the terms of the settlement and reaped the benefits thereunder without voicing any protest and the said averment goes uncontroverted in the affidavit-in-reply that was filed on behalf of the petitioner. as such mr. sengupta relying on the unreported decision of our high court in c.r. no. 14803 (w) of 1984 (kalidas biswas and ors. v. burn standard & co. ltd.) contended that even if for the sake of argument the instant settlement could not be designated as a settlement in the course of a conciliation proceeding so as to have a binding effect on all the workmen, it would not be at least fit and proper case for issuing a writ of mandamus for quashing such a settlement especially when a majority of the workmen had accepted the settlement without any protest. there is much force in the above contention.14. as regards the question of violation of the provisions of section 24 of the west bengal shops and establishments act and the corresponding rule 57 of the rules framed thereunder, it would appear that the said provisions only save the right or privilege to which any person employed in any .shop or establishment is entitled on the date of commencement of this act or the rules, under any law for the time being in force or under any contract, custom or usage which is in force on that, date, if such right or privilege is more favourable to him than any right or privilege conferred upon him by this act or the rules are granted to him at the time of appointment and protect such right or privilege from anything in this act or the rules. section 7(2) provides that no person employed in an establishment shall be required or permitted to work in such establishment for more than eight hours and a half in any one day or for more than forty eight hours in any one week. section 5(1), on the other hand, requires (a) every shop or commercial establishment to remain closed on, and (b) every person employed in such establishment or shop to be allowed as holiday, at least, one and a half day next preceding or next following such day, in each week. in other words, the west bengal shops and establishments act prescribes maximum limit of working hours per week as 48 hours and the maximum number of working days in a week as 5 days and a half. it is true that prior to the coming into force of west bengal shops and establishments act, 1963, for all the employees of the commercial establishment of the respondent company at its rishra unit, the total weekly working hours were 36 and according to the averments in the writ petition for all the employees of the said establishment of the company, the total number of weekly working days was reduced to 5 from 5 1/2 after the coming into force of the act. it is really not understood how the impugned settlement can be said to have violated any of the provisions of the west bengal shops and establishments act or the rules framed thereunder by effecting an increase in the total weekly working hours for the commercial establishment of the company at rishra from 36 to 48 and an increase in the total number of working days from 5 to 5 1/2. the west bengal shops and establishments act does not have any over-riding effect upon the provisions of the industrial disputes act or upon any settlement that can be effected in the course of a conciliation proceeding under the said act. in the circumstances, i have no hesitation to agree with mr. partha sarathi sengupta when he contends that the impugned tripartite settlement cannot be said to have been effected in violation of the provisions of section 24 of the west bengal shops and establishments act or rule 57 of the rules framed thereunder. the petitioners contention to the contrary is accordingly hereby negatived.15. mr. rathin bhaduri, learned counsel, appearing for the writ petitioner, cited a series of decisions reported in (a) bengal iron corporation and another v. commercial tax officer and ors. 1994 supp. (1) scc 310, (b) shri anadi mukta sadguru shree muktajee vandajiwami suvarna jayanti matotsav smarak trust and ors. v. v.r. rudani, and ors. (1989-ii-llj-324) (sc), (c) workmen v. i. i. t. i. cycles of india ltd. and ors. (1995-ii-llj-688)(sc) (d) rope textiles ltd. and anr. v. union of india and ors. 1995 supp (3) scc 199, (e) election commission of india v. union of india and ors. 1995 supp (3) scc 643, (f) lic of india and anr. v. consumer education & research centre and ors. : air1995sc1811 (g) jogendra lal saha v. state of bihar and ors. 1991 supp (2) scc 654, (h) anil kumar gupta and ors. v. state of u.p. and ors. : (1995)5scc173 , (i) hindustan lever limited v. b.n. dongre and ors. : air1995sc817 and (i) state of tamil nadu v. state of karnataka and ors. 1991 supp (i) scc 240, in support of his contention that a writ of mandamus can be issued in the instant case as prayed for by the petitioner. i have perused all the decisions and i am afraid that none of them has any bearing on the point at issue. it is really not understood how these decisions could be of any help to the petitioner in the facts and circumstances of the case discussed above.16. in view of my above discussions, it would necessarily follow that the writ petitioner is not entitled to any relief whatsoever. in the result, the writ petition fails and is hereby, accordingly, dismissed without, however, any order as to costs.