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Judgment
B.N. Jha, J.—This is an application under Articles 226 and 227 of the Constitution of India for quashing an award of the Industrial Tribunal (Central), Dhanbad, dated March 28, 1967 (Annexure D) directing the retransfer of the two workmen to mica mines of the petitioners with consequential reliefs. The grievance of the employer-petitioners is that the tribunal committed an error of law apparent on the face of the record in not making an award in terms of the settlement arrived at between the employer-petitioners and the Abrakh Mazdur Union through its General Secretary Haris Chandra Misra, dated February 20, 1966, in respect of the concerned workmen B.D. Bansal and Jagarnath Singh (opposite party 2 and 3). The petitioners are carrying on the business of extraction of mica for mines and processing it in factories of their sister concern which are under the same management. A large number of workmen are employed by them in their business. Jiwat Singh, durwan, was transferred by the management from Domchanch mica mines to Sibsagar factory, B.D. Bansal, checker, from Bholwaria no. 12 Mica Mines to Sibsagar factory and Jagarnath Singh, pump khalasi, from Kukurkolwa Mica Mines to Sibsagar workshop on October 29, 27 and December 4, 1964, respectively. According to the case of the petitioners, the employees under their service conditions could be transferred from mines to factories and vice versa and as such the three workmen joined their new assignment without any protest. The Abrakh Mazdur Union through its General Secretary Haris Chandra Misra took up the cause of the aforesaid three workmen and raised an industrial dispute by asserting that they could not be transferred from the mines to the factories and demanded their retransfer to their original posts. Thereafter an attempt to settle the matter through conciliation proceedings failed, and hence the Central Government, u/s 10 (1) (d) of the Industrial Disputes Act (hereinafter referred to as the Act), 1947, made a reference to the Industrial Tribunal (Central) Dhanbad in respect of the matter specified in the schedule annexed to the order of reference, which read as follows:
Schedule
Whether the action of the management of M/S Eastern Manganese and Minerals Limited, (Post Office Domchanch-District Hazaribagh) in transferring the workmen mentioned below from the mines specified against each of them in column (4) to the places so specified in column (5) with effect from the respective dates indicated in column (6) was an act of victimisation of the workmen concerned?
II. If so, to what relief are the workmen entitled?
The tribunal registered the reference as reference no. 107 of 1965 and issued notice to the management and the Union to file written statement, but neither of them filed any written statement. While the matter was pending before the tribunal, at the intervention of the Assistant Labour Commissioner, Hazaribagh, the management and the Union entitled the matter and a memorandum (Annexure B) of settlement was drawn up on February 22, 1966, and signed by the general manager of the management and Haris Chandra Misra, General Secretary of the Abrakh Mazdur Union and the Assistant Labour Commissioner and was filed before the tribunal on February 26, 1966, by Girdhar Gopal with a prayer that the award be made in terms of the settlement between the parties. The following are the terms of settlement:
It is agreed by both the parties that Sri B.D. Bansal will be paid Rs. 705.54 (Rupees seven hundred five and paise fifty four) only in full and final settlement of all his dues on this management, within a week from the date of this settlement. After the acceptance of this amount Sri Bansal will have no claim whatsoever over this management. This payment is over and above his leave wages and earned wages.
Sri Jagarnath Singh will be given one additional increment with effect from 1st February, 1966. He will have no claim for the transfer and the union will also drop this matter before the Hon''ble tribunal.
This union is not pressing the case of Jiwat Singh durwan, as he has already taken his full and final settlement.
The union recognises the right of the management to transfer the monthly paid employees from one place to another or from one concern to another sister concern and in future they will not raise any demand or dispute in this respect.
The union is agreeable to send one copy of this agreement to the Honourable Tribunal with the request that an award on the line may please be given.
Before filing of the aforesaid settlement workman B.D. Bansal filed a petition before the tribunal on behalf of himself and Jagarnath Singh stating therein that they had come to know that the union had compromised with the management but they did not know of it and they did not know on what terms the compromise had been effected and, there-fore, they prayed that the case be considered on merits. B.D. Bansal also informed the tribunal that the other workman Jiwat Singh compromised with the management and accepted the claim and as such he had nothing to do with the dispute. The tribunal did not make an award in terms of the settlement, but issued notice to the General Secretary of the Union and the representatives of the management and B.D. Bansal and Jagarnath Singh, the two concerned workmen, for showing cause as to why the compromise should not be recorded. Thereafter, the Labour Officer of the management appeared and insisted on making the award in terms of the compromise, whereas the two concerned workmen, B.D. Bansal and Jagarnath Singh, disputed the compromise. Jiwat Singh did not appear at any stage of the proceedings to contest the compromise and hence the tribunal accepted the compromise so far as Jiwat Singh was concerned, but rejected the compromise with regard to the other two concerned workmen, B.D. Bansal and Jagarnath Singh, who prayed to the tribunal to hear the reference on merits. Hence an award was made in terms of the compromise so far as the concerned workman Jiwat Singh was concerned by the tribunal by its order dated March 15, 1966 (Annexure C). The management was all along insisting that the award in respect of the other two concerned workmen be also made in terms of the compromise, but the tribunal did not accede to the request of the management and heard the two individual workmen, B.D. Bansal and Jagarnath Singh, and held that the transfer of B.D. Bansal and Jagarnath Singh from mines to Sibsagar factory was unjustified and illegal and it was an act of victimisation. Therefore, it set aside the order of their transfer and directed their retransfer to and reinstatement at their respective mica mines where they were working before. It also directed that the concerned workmen would get full wages and all other reliefs from the date of their transfer to the date of their reinstatement in the mines by its award dated March 28, 1967 (Annexure D). Hence the employer-petitioners have come up to this Court.
Mr. Ranen Roy, learned counsel for the petitioners, urged that there was no industrial dispute after the matter was settled between the employer-petitioners and the union, opposite party 1, at whose instance the industrial dispute was raked, and reference to the tribunal u/s 10A of the Act was made by the Central Government. An agreement (Annexure B) duly signed by the manager of the management and the Secretary of the Abrakh Mazdur Union together with an endorsement by the Assistant Labour Commissioner (Central), Hazaribagh, was filed before the tribunal on February 26, 1966. Mr. Ranen Roy submitted that after the tribunal was apprised of the settlement of the industrial dispute between the employers and the Abrakh Mazdur Union, the tribunal was bound to make an award in terms of the settlement. There is a good deal of force in this contention,
Section 18(1) of the Act provides that a settlement arrived at by agreement between the employer and workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. There is no provision in the Industrial Disputes Act like Order 23, Rule 3, CPC for recording a lawful compromise arrived at between the parties, but now it is well settled that in such a case the tribunal will make an award in terms of the settlement. It has been pointed out by the Supreme Court in (1) The State of Bihar Vs. D.N. Ganguly and Others, after reviewing the whole scheme of the Act that if an industrial dispute before a tribunal is amicably settled the tribunal would immediately agree to make an award in terms of the settlement between the parties because if it does not do so there is a possibility of a conflict between the award and the provisions of Section 18 (1) of the Act. It is true that if the settlement is arrived at by fraud, misrepresentation or undue influence, the tribunal will not act on it. Otherwise, in order to secure peace, amity and good relationship between the employer and the workmen the tribunal will proceed on the basis of the settlement arrived at between the parties. In the present case, there is nothing on the record to show that the settlement filed before the tribunal is vitiated by such consideration. The very fact that the tribunal accepted the settlement in respect of the individual workman Jiwat Singh and made an award accordingly clearly shows that it accepted the settlement as genuinely arrived at between the employers and the union.
The sole basis for refusing to make an award in terms of the settlement in respect of the other two concerned workmen, B.D. Bansal and Jagarnath Singh, was that the two individual workmen appeared before the tribunal and did not accept the compromise arrived at between the employers and the union through its Secretary Haris Chandra Misra. Mr. Ranen Roy submitted that the course adopted by the tribunal in the circumstances of the case is erroneous in law. The scheme of the Act shows that the individual workman has got no locus standi in the industrial dispute which is raised by the union though the dispute relates to the grievances of the individual workman. In such a dispute Section 36 (1) provides that a workman who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by an officer of a registered trade union of which he is a member. It is not denied here that the three individual workmen were members of the Abrakh Mazdur Union. An industrial dispute was raised by the union through its secretary before the tribunal. The secretary who was an officer of the union was quite competent to represent the case of the individual workman before it. After the settlement was arrived at between the employers and the union and was duly signed by the representatives of the employers and the secretary of the union the tribunal should have made an award in terms of the settlement. The individual workman did not contend before the tribunal that the settlement was vitiated on account of fraud, misrepresentation or undue influence nor was there any proof of the facts which constituted any fraud, misrepresentation or undue influence before it. Hence, the only course left for the tribunal was to ignore the objections raised by the individual workman to making the award in terms of the settlement and hearing the case on merits. Mr. Roy drew our attention to a decision of the Supreme Court in (2) Ram Prasad Vishwakarma Vs. The Chairman, Industrial Tribunal, wherein it was held that the individual workman is at no stage a party to the industrial dispute independently of the union and that the union or a group of workmen who have by their sponsoring turned the individual dispute into an industrial dispute can, therefore, claim to have a say in the conduct of the proceedings before the tribunal. It was also pointed out that the workman who is a party to a dispute shall be entitled to be represented by an officer of a registered trade union of which he is a member and that such representation by an officer of the trade union should continue throughout the proceedings in the absence of exceptional circumstances which may justify the tribunal to permit other representation of the workman concerned. In the present case, in my opinion, no such exceptional circumstances existed to justify the tribunal to allow the two workmen, B.D. Bansal and Jagarnath Singh to be represented through B.D. Bansal.
When the workman, B.D. Bansal, objected to making an award in respect of himself and Jagarnath Singh, the tribunal issued notices to the union through its General Secretary Haris Chandra Misra, Girdhar Gopal, representative of the management, B.D. Bansal and Jagarnath Singh, the two workmen concerned, who did not accept the compromise, to appear and show cause as to why the compromise should not be recorded. The General Secretary Haris Chandra Misra did not appear in spite of the registered letter sent to him, nor did Jiwat Singh, another concerned workman, appear. The Labour Officer of the management appeared and supported the compromise in respect of all the three concerned workmen, whereas B.D. Bansal and Jagarnath Singh appeared and opposed the compromise. The tribunal in its order dated March 15, 1966, stated as follows:
After hearing the representatives of the management and the two concerned workmen I decided to accept the compromise in part with regard to Shri Jiwat Singh and to reject the compromise with regard to the other two concerned workmen, namely, Sarvashri B.D.O. Bansal and Jagarnath Singh and to hear the reference on the merit at a later stage as against them.
The tribunal made a partial award in terms of the settlement in respect of the concerned workman Jiwat Singh, but no reason was assigned by it as to why it did not accept the settlement as a whole in respect of all the three concerned workmen and make an award accordingly.
From the order of the tribunal dated March 15, 1966, itself, it appears that B.D. Bansal, without knowing the terms of settlement, objected to making the award in such terms in respect of himself and Jagarnath Singh and, therefore, a prayer was made to hear the reference on merits. In such circumstances, it was not possible for the workmen to characterise whether the settlement was fair or unfair. The tribunal also while not accepting the settlement in respect of these two concerned workmen did not assign any reason for not accepting the compromise in respect of them also though it accepted the compromise so far as the other workman Jiwat Singh was concerned. No allegation about any fraud, misrepresentation or collusion on the part of the union is alleged in the petition or in the order of the tribunal for not accepting the settlement in respect of these workmen on that ground, but, however, the tribunal, in the award dated March 28, 1967 (Annexure D), has observed that it rejected the compromise in respect of the other two workmen B.D. Bansal and Jagarnath Singh on March 15, 1966, as they objected to the same and challenged the compromise as collusive though no such ground appears to have been taken by the workmen or referred to by the tribunal. At another place the tribunal assumed that the union was in collusion with the management and, therefore, information about the date of the case was not given by the union to the two--the two individual workmen, because the union was in collusion with the management. The written statement filed before the tribunal by these two workmen was placed before us and from a perusal of their written statement also no such ground of collusion appears to have been taken by the workmen.
No attempt was made by the workmen to show that the terms of the compromise were not fair in the circumstances of the case. According to the settlement quoted above, it appears that B.D. Bansal was given Rs. 705.54 as compensation to be paid by the management besides the leave wages and earned wages and the other workman Jagarnath Singh was given one additional increment with effect from February 1, 1966, The union did not press the case of Jiwat Singh as he his taken his claim for final settlement. The union also recognised the right of the management to transfer monthly paid employees from one place to another or from one concern to another sister concern as in future they would not make any attempt or raise dispute in this respect. The two workmen in their written statement raised the point that they would not be getting in the factory the allowances to which they were entitled in the mines and were getting and thus they would be losing about Rs. 16/- per month by their transfer from mines to the factory and as such the transfer was mala fide and was an act of victimisation. No ground appears to have been taken as to why the management would victimise these three concerned workmen by transferring them from mines to factory where mica was processed after extraction. In such circumstances, it appears that the order of the tribunal was vitiated on account of some extraneous consideration, viz., the tribunal thought that the management was avoiding it as it was superannuating on the 29th March, 1967, and the case would be decided by another tribunal. The tribunal did not reject the compromise in respect of these two workmen after coming to the conclusion that the compromise was collusive, but simply on the ground that the two workmen objected to the compromise being recorded and challenged it was collusive without coming to a finding of collusion between the management and the union (as pointed out before) that when an industrial dispute is raised by the union or a group of workmen in respect of the grievances of individual workman and reference is made by the Government the dispute is between the management and the union and not between the management and the individual workman concerned. In the reference itself it is not only the transfer of the: three concerned workmen that was in issue but a bigger question was involved as to whether the management had a right to transfer the monthly paid employees from mines to factories and vice versa, The union recognised the right of the management to make transfer of its employees from one concern to another sister concern for administrative purposes. The tribunal lost sight of the bigger issue and treated it as an individual dispute of the three workmen with the management. It accepted the settlement in respect of one who did not object and rejected it in respect of the other two who objected to the compromise being recorded. When the matter was settled between the union and the management and a compromise was filed before the tribunal it should not have refused to record the compromise simply because the two concerned workmen objected to its being recorded and proceeded to decide the case on merits. The stand of the management was all along that the individual workman had no locus standi in the matter. Though notice was issued to the union for showing cause why the compromise should not be recorded the union did not come forward to object to its being recorded. A similar question came before this Court in (3) Dr. Chandra Kala Jha Vs. Management of Sone Valley Portland Cement Co. Ltd. and Another, , where the union had raised an industrial dispute in regard to the termination of services of one Dr. Chandrakala Jha and thereafter the union made settlement with the management through the then secretary. The labour court accepted the compromise. Dr. Jha challenged the compromise on the ground that in the compromise she could be only represented through Sarjug Prasad Ambasth, who was the Secretary of the union at the time the dispute between the petitioner and respondent 1 arose and as such the compromise was not binding on her. This Court observed as follows:
The legal position is that when an individual workman is a party to an industrial dispute he is a party not independently of the union which has espoused his cause, and the main parties to the industrial dispute before the Labour Court are therefore the employer and the union which has taken up the cause of the individual workman.
The principle laid down in Dr. Chandrakala Jha''s case aptly applies to the facts of the present case. Mr. Ranen Roy drew our attention to a recent decision of the Supreme Court in (4) The Sirsilk Ltd. and Others Vs. Government of Andhra Pradesh and Another, , where the settlement between the management and the union was arrived at after the tribunal made an award and sent to the Government for its publication in the gazette. The Supreme Court held that in such circumstances there was no dispute left to be resolved after the settlement was made though after the making of the award by the tribunal and before its publication by the Government in the gazette, and as such the Government would not publish the award in the gazette. This was an extreme case where the settlement was arrived at after the tribunal had made an award, but still the settlement arrived at between the parties prevailed over the award. Here bona fide settlement was arrived at between the management and the union which was not vitiated on the ground of fraud, misrepresentation or undue influence. The tribunal was not justified in not making the award in respect of the three workmen in terms of the settlement, and as such the award (Annexure D) is erroneous in law and must be set aside.
Mr. Ranen Roy justified the transfer of these three workmen from the mine to the factory on the ground that the transfer was for the administrative purposes and under the terms and conditions of the services under the management an employee could be transferred from one sister concern to another which was under the same management. He relied on a decision of the Supreme Court in (5) Canara Banking Corporation Ltd. Vs. U. Vittal, . Learned counsel for the petitioners also challenged the finding of the tribunal that the order of the tribunal was mala fide and an act of victimisation. No ground for constituting mala fide or victimisation was pleaded by the two workmen. The only ground was that they were getting some extra allowances when they were working in the mines. The tribunal, however, did not consider whether the compensation allowed to the individual workman was adequate in proportion to the loss they suffered by the order of transfer and the risk which was involved in the service in mines. On the other hand, Mr. Shyama Prasad Mukherji contended that the management had no right to make transfer from mines to factories. He relied on a decision of the Supreme Court in (6) Kundan Sugar Mills Vs. Ziyauddin and Others, , where the question arose whether the workman could be transferred from the old concern to a new concern which was purchased by the management subsequent to his appointment and the transfer of the workman was held improper and as such it was set aside. In the present case sufficient materials were not placed before the tribunal as to when the three individual workmen were appointed and when the respective factories to which they were transferred were started. Unless grounds for mala fide were taken and proved the transfer order must be taken to be for the purpose of administration. It is for the management to decide as to where a particular workman should be employed. I need not decide the question regarding the validity of the transfer in view of the fact that I have already held that the impugned award (Annexure D) is erroneous in law and the tribunal failed in its duty to make an award in terms of the settlement arrived at between the management and the union. For the reasons stated above, the application is allowed and the award of the Industrial Tribunal (Central), Dhanbad, dated the 28th March, 1967, is quashed and the tribunal is directed to make an award in terms of the settlement dated February 22, 1966, filed before it on the 26th February, 1956 (Annexure B). The petitioners are entitled to costs. Hearing fee: Rs. 100.