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Judgment
Devi Prasad Singh, J.
Petition under Article 226 of the Constitution of India has been preferred claiming wages payable to the regular employees for specified period on the ground that in case, petitioner would have been regularized earlier he would have been entitled for payment of regular pay scale.
A substantial question of law cropped up for adjudication is, whether an agreement signed by the Labour Union and the Management in accordance to law, shall be binding over the workmen or the members of Labour Union, even if they do not agree with settlement?
The brief facts of the present case are discussed henceforth. According to Shri S. C. Maheshwari, learned Senior Counsel assisted by Shri H. K. Mishra, the petitioner was engaged as temporary casual labour on payment of wages @ Rs. 11.50 per day w.e.f. 21.1.1985. Copy of appointment letter has been filed as Annexurre1 to the writ petition. The submission of learned Counsel for the petitioner is that at induction level of nonexecutive category of employee A Grade technical, the appointments are done against the following categories :
(1) Unskilled Group
(2) Skilled Group
(3) Supervisory
(4) Technical Group
According to circular dated 25.11.1985 (Annexure2) the daily wager employees shall be entitled for wages after completion of minimum six months services on a consolidated wages of Rs. 450/ per month. Such persons shall be eligible for consideration for appointment to regular grade after completion of minimum period of one year of service on consolidated wages of Rs. 450/ per month. The circular further provides that after screening the daily rated employees who are found fit may be given consolidated wages of Rs. 475/ per month. Such employee shall be entitled for appointment to the regular post in semiskilled category with consolidated wages of Rs. 475/ per month Circular further provides that employees recruited on daily wage basis or skilled or for clerical job may be eligible for payment @ Rs. 500/ per month.
It has been pleaded by the petitioner in the present writ petition that the petitioner ought to have been given consolidated pay of Rs. 450/ per month after the period of six months and after expiry of one year i.e. sometime in the month of January 1986. Petitioner had submitted a representation dated 24.9.1985 (Annexure3) claiming payment of consolidated wages @ Rs. 450/ per month. It has also been stated by the petitioner that petitioner''s wages were enhanced to Rs. 12 to 30 per day. However, petitioner was not made permanent employee keeping in view the circular. Petitioner''s case was persuaded by the BHEL Karamchari Sangh through representations dated 30.11.1998 (Annexure6) and 6.12.1989 (Annexure7) with the prayer that he may be treated as regular employee after lapse of 18 months and payment may be made accordingly. It has been further stated by the petitioner that from June, 1987 he was paid wages @ Rs. 345/ per month though others were paid wages @ Rs. 450/ per month. Representation dated 26.6.1989 (Annexure8) submitted by the petitioner to ventilate his grievance remain unattended.
However, by letter dated 23.8.1989 (Annexure9) petitioner was placed in the payscale of Rs. 650/ per month. A perusal of letter dated 23.8.1989 reveals that the petitioner was selected and placed in the pay scale of Rs. 656/ per month w.e.f. 12.8.1989. A perusal of the order dated 23.8.1989 also shows that the appointment was on probation with rider that after on year of satisfactory service petitioner''s services could be made permanent. It has been further stated by the petitioner''s Counsel, Sri S. C. Maheshwari, learned Senior Advocate that interview was taken place in the year 1987 but only on 26.11.1990 the petitioner was appointed on the post of unskilled worker at the pay scale of Rs. 1086201386. Copy of the appointment letter has been filed as Annexure12 to the writ petition.
Subject to abovenoted backdrop, the grievance of the petitioner is that his candidature for consolidated pay was not done within the stipulated period provided by circular dated 25.11.1980 (Annexure2). After lapse of more than three years, the petitioner''s case was considered for payment of consolidated pay @ Rs. 656 per month w.e.f. 12.8.1989 as discussed hereinabove. According to petitioner''s Counsel petitioner should have been declared regular employees after''21 months instead of after four and half years.
The submission of learned Counsel for the petitioner is that petitioner should have been given wages within the time frame provided by the circular dated 25.11.1980. Accordingly, the submission is, respondents may be directed to pay the wages payable to regular incumbent of the period from July, 1985 to 11.8.1989 and difference of salary may also be paid to the petitioner. Petitioner has also prayed for payment of wages of unskilled worker in the required pay scale after lapse of period of 21 months keeping in view the circular contained in Annexure2 to the writ petition.
Learned Counsel for the petitioner has relied upon the judgments reported in 1988 (1) SCC 122, Daily Rated Casual Labour v. Union of India and 1990 (3) ATC 768, Jagrat Mazdoor Union v. Mahanagar Telephone.
On the other hand, it has been submitted by Shri Shailendra Verma, learned Counsel for the respondents that in view of tripartite settlement entered into between the Labour Union and the Management it is not open to the petitioner to claim wages and related arrears of wages in the manner discussed hereinabove. The copy of agreement of tripartite has been filed as Annexure CA1 to the counteraffidavit. The tripartite agreement has been signed before Deputy Labour Commissioner, Faizabad Division, Faizabad by the representative of Management and Labour Union on 7/8.8.1989.
Relevant portion form the tripartite agreement is reproduced as under :
However, it has been submitted by Shri S. C. Maheshwari, learned Senior Counsel, that petitioner was not a party of tripartite agreement.
I have considered the arguments advanced by the parties Counsel at length. So far a binding nature of the tripartite agreement is concerned, the argument advanced by Shri Shailendra Verma, learned Counsel for the respondents, seems to have got force. The agreement was entered into between the parties'' in pursuance to power conferred by statutory provisions. It has not been stated by the petitioner, while filing the rejoinder affidavit, that he is not the member of Labour Union rather it has been stated in Para 18 of the writ petition, that he had persuaded the matter through the BHEL Karamchari Sangh by means of representation dated 30.11.1988 and 6.12.1989. The agreement in question is of August, 1989. Thus in the absence of any pleading on record, it shall be presumed that the petitioner has been the member of Trade Union and agreement entered into between the Management and employer in pursuance to power conferred by statutory provisions before the Deputy Labour Commissioner shall cover the petitioner''s case also. Accordingly, the tripartite agreement between the Labour Union and the Management shall very well cover the field and rights of the petitioner should be seen keeping in view the letter and spirit of the tripartite agreement.
While submitting reply to para 5 of the counteraffidavit, only statement has been given by petitioner''s Counsel that petitioner has got no concern with the tripartite agreement, which seems to be not correct and sustainable.
In a case reported in AIR 1972 SC 2326, Dunlop India Ltd. v. Their Workmen, the Apex Court ruled that the employees shall be bound by the agreement entered into between the Management and Labour Union if they are the members of said Union. However, in case the employees are not member of such Labour Union they shaft not be bond by agreement (para 24).
In the present case, as discussed hereinabove, the petitioner himself had approached the Management through Labour Union, which indicates that he has been the member of Labour Union, he seems to be bound by agreement in question relied upon by the respondent''s Counsel.
The Constitution Bench of Apex Court in a case reported in (1978) 2 SCC 50, Madan Mohan Pathak v. Union of India, held that where an issue has been decided finally by the judgment of Court, the workmen have right to enforce the judgment through a writ of mandamus. The right accruing through settlement shall not be available in case, the Court had considered and decided the issue after considering settlement between the parties. The rights so settled by the judgment of Court cannot be taken away by the legislation through an enactment (paras 7 and 8).
In a case reported in AIR 1980 SC 2181, Life Insurance Corporation of India v. D. J. Bahadur and others, Hon''ble Supreme Court held that the award or settlement shall occupy the field between the parties unless it becomes honest by operation of law or subsequent settlement.
Relevant portion from he judgment of Apex Court in a case of Bahadur (supra) is reproduced as under :
"43. A precedent as Disraeli said, embalms a principle. We have pointed out the principle and cited the ''precedents. There is more to it than mere wealth of precedents or what Burke called ''the deep slumber of a decided opinion''. It enlivens industrial peace, avoids labour discontent and helps to set the stage for next negotiations for better terms for workers. Economics freedom of the weaker sections is behind these precedents almost reminding us of Tennyson :
A land of settled Government, A land of just and old renown, Where freedom slowly broadens down, From precedent to precedent.
The law is lucid and the Justice manifest on termination notice or notice of change the award or settlement does not perish but survives to bind until reincarnation, in any modified form, in a fresh regulation of conditions of service by a settlement or award. Precedents often broadly guide but when on the same point willynilly bind..."
Hon''ble Supreme Court in another case reported in AIR 1981 (68) SC 2163, M/s. Tata Engineering and Locomotive Co. Ltd. v Their Workmen, held that if a settlement is arrived between the a majority of workers through the Union it shall be binding on all the workmen even if a part of workmen are not satisfied.
Relevant portion from the judgment of Tata Engineering and Locomotive Co. Ltd. (supra) is reproduced as under :
"...........We are clearly of the opinion that the approach adopted by the Tribunal in dealing with the matter was erroneous. If the settlement had been arrived at by a vast majority of the concerned workers with their eyes open and was also accepted by them in its totality, it must be presumed to be just and fair and not liable to be ignored while deciding the reference merely because a small number of workers (in this case 71, i.e., 11.18 per cent) were not parties to it or refused to accept it/or because the Tribunal was of the opinion that the workers deserved marginally higher emoluments than they themselves thought they did. A settlement cannot be weighed in any golden scales 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. In this connection, we cannot do better than quote extensively from Herbert sons Limited v. Workmen of Herbert sons Limited, (1977) 2 SCR 15 : AIR 1977 SC 322, wherein Goswami, J., speaking for the Court observed (at p. 327 of AIR):
"Besides, the settlement has to be considered in the light of the conditions that were in force at the time of the reference. It will not be correct to Judge the settlement merely in the light of the award which was pending appeal before this Court. So far as the parties are concerned there will always be uncertainty with regard to the result of the litigation in a Court proceeding. When, therefore, negotiations take place which have to be encouraged, particularly between labour and employer, in the interest of general peace and well being there is always give and take. Having regard to the nature of the dispute, which was raised as far back as 1968, the very fact of the existence of a litigation with regard to the same matter which was bound to take some time must have influenced both the parties to come to some settlement. The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust............"
While interpreting the previsions contained in Sections 18 and 19 of the Industrial Disputes Act, Hon''ble Supreme Court in a case reported in (1984) 1 SCC 728, The Workmen and others v. M/s. Hindustan Lever Ltd., held that an agreement arrived between the Labour Union and employer cannot be repudiated unilaterally.
Relevant portion from the judgment of M/s. Hindustan Lever Ltd. (supra) is reproduced as under :
"23.............The Act was designed to provide a selfcontained code to compel the parties to resort to industrial arbitration for the resolution of existing or apprehended disputes without prescribing statutory norms for varied and variegated industrial relation norms so that the forums created for resolution of disputes may remain unhampered by any statutory control and devise rational norms keeping pace with improved industrial relations reflecting and imbibing socioeconomic Justice. If this is the underlying object behind enactment of the Act, the Court by interpretative process must strive to reduce the field of conflict and expand the area of agreement and show its preference for upholding agreements sanctified by mutuality and consensus in larger public interest, namely, to eschew industrial strife, confrontation and consequent wastage..............
The parties in this case entered into a solemn agreement. It is not for moment suggested that the agreement has been terminated. The only argument put forward on behalf of the employer was that the Union has repudiated the agreement by raising disputes of an AllIndia nature at a regional level and thereby committed breach of the agreement. The contention is entirely without merits............
If thus, the employer swore by the agreement, relied upon it and successfully contested the claim of the Union, it cannot now be permitted to back out from such solemn agreement and apart from the technicality of the issue being res judicata or issue estoppel, industrial peace and harmony, good behaviour and fair relation with workmen estops the employer from either repudiating the agreement or contending that the agreement was not a concluded agreement but an inchoate one. In this connection, we may profitably refer to Western India Match Co. v. Their Workmen, (1964) 3 SCR 560, wherein this Court observed as under :
''"It is not out of place to mention in this connection mat on some previous occasions the Management itself has treated these categories as workmen within the meaning of the U.P. Industrial Disputes Act. The Management''s contention that the Tribunal has erred in thinking that the Inspectors, salesman and retail salesmen are workmen must, therefore, be rejected."
..................If the Union can be held bound to such an inferred agreement from correspondence, the employer conceding the status or to be precise conceding not to contest the status of salesmen would equally be binding on the employer. It would thus appear that the employer/Management was held bound not by any specific agreement but an agreement spelt out of its conduct in Western India Match Co. case and assertions in correspondence in Indian Aluminum Co. case, (1962) 1 LLJ 210, treating certain categories of the workmen as workmen or not as workmen respectively within the meaning of the expression in the Act, then at a later stage, the employer and the Union respectively were estopped from contending to the contrary."
The aforesaid proposition of law has been reiterated by Hon''ble Supreme Court in other cases reported in (1994) 6 SCC 145, Ram Pukar Singh and others v. Heavy Engineering Corporation and others and (1991) 1 SCC 4, Barauni Refinery Pragatisheel Shramik Parishad v. Indian Oil Corporation Ltd.
Relevant portion from the judgment of Indian Oil Corporation Ltd. (supra) is reproduced as under :
"8. Therefore, a settlement arrived at in the course of conciliation proceedings with a recognized 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 cutting 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 mad by an adjudicatory authority. The High Court was, therefore, right in coming to the conclusion that the settlement dated August 4, 1983 was binding on all the workmen of the Barauni Refinery including the members of Petroleum and Chemical Mazdoor Union."
In view of the aforesaid settled proposition of law and keeping in view the binding nature of agreement between employees Union, petitioner cannot claim right beyond the purview of agreement as he is bound by the decision taken by the employees Union and Management through the agreement filed as AnnexureCA 1 to the counteraffidavit. The cases of Apex Court relied upon by the petitioner''s Counsel of Daily Rated Casual Labour and Jagrat Mazdoor Union seems to be not applicable under the facts and circumstances of the present case.
So far as payment of wages is concerned, as claimed by the petitioner, does not seem to be sustainable under law. However, the petitioner shall be entitled for the benefit of wages or difference of wages, as the case may be, keeping in view the tripartite settlement entered into between the Trade Union and the Management.
Writ petition deserved to be allowed in part to the extent it related to petitioner''s right accruing to him in pursuance to tripartite settlement and relief may be mounded accordingly.
In view of above, the writ petition is allowed in part. A writ in the nature of mandamus is issued commanding the opposite parties to consider the petitioner''s case for payment of arrears of wages keeping in view the difference in payment of salary paid to the petitioner during the course of employment within the ambit of tripartite agreement and a decision shall be taken by the respondents accordingly expeditiously and preferably within a period of four months from the date of receipt of a certified copy of the present order by passing a speaking and reasoned order (if already not taken) and communicate the decision to the petitioner. For other relief writ petition fails and dismissed in part.
No order as to costs.