Minerals Workers' Union vs Indian Rare Earths Ltd. and Another

P. Jyothimani, J.—This writ petition is filed for forbearing the respondents from deducting any amount from the monthly salary of the

members of the petitioner''s union irrespective of their consumption of food items from the second respondent pursuant to the first respondent''s

notice dated March 28, 2006.

The case of the petitioner-union is that the first respondent is a Central Government undertaking and members of the petitioner''s union

numbering around 120 are the workers of the first respondent. There was a settlement arrived at between the first respondent and the various

other trade unions of the workers belonging to the first respondent including the petitioner''s union u/s 12(3) of the Industrial Disputes Act on

December 8, 2005. Eventhough, the settlement relates to various matters, this writ petition covers only in respect of facilities granted to the

employees regarding the canteen run by the first respondent. Admittedly, before the above settlement was entered between the parties, the

purchase of coupon system was in existence. As per the settlement, the coupon system was given up with effect from April 1, 2006 and the system

of deducting dues from the salary of the workmen with effect from April 1, 2006 was sought to be introduced in the following manner namely:

From Workmen attending General Shift:

(8.a.m. To 4.p.m.) and Office (9.30 a.m., to 5.p.m.):

Rs. 6/- per one attendance

From Workmen attending rotational shifts:

Rs. 4/- per one attendance

Workmen attending overtime:

Rs. 3/- per four hours OT

Therefore, as per the said system under the agreement when once a worker entered into the place of the establishment by attending, he will be

liable for the deduction based on the principles stated above. It is also stated in the said agreement especially in Clause 20.0, 20.1 and 20.2 that in

cases where the present system namely, the coupon to be continued even after April 1, 2006, the rate of food items supplied in the canteen will be

increased by 20% with effect from April 1, 2006.

Even though, this agreement dated December 8, 2005 was signed by the petitioner''s union and various unions apart from the employer,

according to the petitioner, they have objected the said system of deduction from the salary of workmen. Further there was a second settlement on

March 24, 2006 by the first respondent with other unions to which the petitioner''s union was not a party. As per the said second settlement, the

coupon system was given up and the new system of deducting canteen dues from the salary of all the workmen as stated above was accepted as

an agreement. It was pursuant to the said agreement, the first respondent has issued the impugned notice dated March 28, 2006 directing the

employees who are having unutilised canteen coupons to surrender and stating that the new system will come into effect from April 1, 2006. It is

this notice which is under challenge in this writ petition.

The first respondent has filed counter affidavit. It is the specific case of the first respondent that the employees of the first respondent formed

part of five trade unions including the petitioner''s union with the following representative strength:

S. No. Unions Representative Strength

Mineral Workers Union 26.86%

Kanyakumari District Mineral Workers & Staff Union 23.70%

I.R.E.L. Mazdoor Sangh(B.M.S) 21.22%

Anna Mineral Employees Union 19.41%

Indian Rare Earths Employees Union 8.35%

According to the first respondent, even as per the settlement dated December 8, 2005 paragraph 20.1 it was agreed to go for the new system

of deducting from the salary for canteen dues and if the present coupon system was to be continued, the rate will be increased by 20%. According

to the first respondent, the said agreement which was signed by all the five unions has been implemented and in fact no one of the other unions

which are collectively having 73.14% of representative strength have raised any objection except the petitioner''s union who are having only

26.86% of representative strength.

It is further the case of the first respondent that when once the settlement was given effect to, the writ petition for Mandamus is not maintainable

especially, when the coupon system has been discontinued. It is further, the case of the first respondent that inasmuch as the settlement arrived at

12(3) under the Industrial Disputes Act has not been challenged, it is not open to the petitioner''s union to challenge the impugned communication

which is only a consequential notice and it is specifically denied that the canteen was maintained in an unhygienic manner. On the other hand, the

respondent has secured certification from the authorised international agencies in respect of their management.

According to the respondents, it is only in the event of non implementing of the coupon system with effect from April 1, 2006 under Clause

20.1, Clause 20.2 of the agreement will apply. According to the first respondent authority, eventhough,the petitioner claims that 120 members are

in the union of the petitioner, it is only 63 persons belonging to the petitioner''s union, as seen in the letter of the said 63 persons dated March 29,

2006 having objected for the new system, which has been agreed upon.

Mr. D. Rajagopal learned Counsel appearing for the petitioner''s union while referring to the Clause 20.1 of the agreement entered u/s 12(3) of

the Industrial Disputes Act, dated December 8, 2005 would submit that the words of the said clause show that it was only a suggestion made by

the employer for the purpose of dispensing with the coupon system and introducing a new system of deduction of canteen dues from the salary of

all the workmen and therefore, it cannot be said that it is binding upon the members of the petitioner''s union. He would also submit that the very

fact that under the subsequent agreement entered u/s 12(3) of the Industrial Disputes Act dated March 24, 2006, which is in respect of the same

matter shows that what was agreed on December 8, 2005 was not conclusive. On the other hand, in the subsequent agreement dated March 24,

2006, the petitioner''s union is not a party and therefore, based on the said second agreement dated March 24, 2006, when the second respondent

on behalf of the first respondent has issued the impugned notice, it is open to the petitioner to file the writ petition for Mandamus inasmuch as the

petitioner''s union is not a party to the agreement dated March 24, 2006 which was the basis for the impugned notice given by the second

respondent.

It is the contention of the learned Counsel for the petitioner that 120 workers are forming part of the petitioner''s union and therefore, being the

single largest union, the petitioner is entitled to the redressal of their grievances. The learned Counsel would contend that the proposed change into

the new method states that any employee who enters into the place of employment and signs attendance will be liable for payment of canteen dues

even if he does not use the canteen service. When it is pointed out to the learned Counsel for the petitioner, as to whether the objection given by

the petitioner''s union for the proposed change by way of the representation dated March 29, 2006 was sent to the Assistant Labour

Commissioner (Central), Madurai, the learned Counsel for the petitioner would submit that eventhough, the said copy sent to the Assistant Labour

Commissioner it was only for a communication and not for the purpose of raising any industrial dispute. The learned Counsel also would submit

that sending a copy of the objection to the Labour Commissioner before filing the present writ petition will not take away the right of the

petitioner''s union to challenge the present impugned notice. The learned Counsel would also contend that under the Mines Act by considering the

definition of the word ''mines'' u/s 2(J), the activity conducted by the first respondent cannot come under the same and at the most it can be

covered under the Factories Act in which case a separate provision is made out conferring the powers on the Director of Factories to decide

about the canteen facilities and therefore, according to the learned Counsel for the petitioner such agreement u/s 12(3)will be opposed to the

Factories Act.

On the contrary, Mr. Sanjay Mohan, learned Counsel appearing for the respondents would submit that at the outset the writ petition is not

maintainable under Article 226 of the Constitution of India since the petitioner seeks to raise the dispute regarding the interpretation of the words of

the settlement entered u/s 12(3) of the Industrial Disputes Act dated December 8, 2005.

It is further contended by the learned Counsel that out of the total number of workers employed in the first respondent, admittedly, the

petitioner''s union is having the representative strength of 26.86% while the remaining four unions with other workers having representative strength

of 73.14%. When the said majority of the workers belonging to the other unions who have also signed in the settlement dated December 8, 2005

along with the petitioner''s union and the employer having switched over to the new method of providing canteen facilities by deducting canteen

dues from the salary of all the workmen with effect from April 1, 2006, have not- objected, the petitioner''s union alone has chosen to object the

same. Therefore, according to the learned Counsel this would at the most amount to the change of service conditions of the employees belonging

to the petitioner''s union. If so, as per Section 9-A of the Industrial Disputes Act, the remedy of the petitioner is available under the Industrial Act

and not by invoking the jurisdiction of this Court under Article 226 of the Constitution of India. To this proposition, the learned Counsel also relied

upon the judgment of a Division Bench of this Court rendered in Indian Additives Limited, Chennai v. Indian Additives Employees'' Union (Reg.

No. 2229/MDS), rep. by its General Secretary, Chennai and Anr. 2005 1 LLJ 900 wherein under similar circumstances when there was a breach

of Section 9-A of the Industrial Disputes Act relating to the service conditions of the employees, the Hon''ble Division Bench consisting of the

Hon''ble Chief Justice Markandey Katju and Mr. N.V. Balasubramanian have held that the effective alternative remedy is available u/s 9-A of the

Industrial Disputes Act by raising an industrial dispute.

The learned Counsel would further submit that even as per Section 36-A of the Industrial Disputes Act when there is a dispute regarding the

interpretation of any provision of an award or settlement, the same has to be referred to the Labour Court. In the present case, when the

petitioner''s union seeks to give an interpretation to the word ""suggested"" in Clause 20.1 of settlement dated December 8, 2005 that cannot be

decided in the writ jurisdiction under Article 226 of the Constitution of India and the same has to be referred to the Labour Court since it requires

the question of evidence and so many other factual situations.

The learned Counsel would further submit that according to him, the word ""suggested"" should be taken into account as agreed, especially in the

circumstance that the majority of the other union members belonging to the first respondent establishment have accepted the interpretation of

Clause 20.1 as meaning to give up the present coupon system and deduct the canteen dues from the salary of all the workmen with effect from

April 1, 2006.

The learned Counsel would also submit that admittedly the petitioner''s union while raising objection to the new system agreed upon, in the

objection dated March 29, 2006 have forwarded the said objection to the Assistant Commissioner of Labour (Central) Madurai. The learned

Counsel also would submit that on the same day namely on March 29, 2006, 63 workers of the first respondent establishment out of whom,

according to the learned Counsel for the first respondent, only the 50 are belonging to the petitioner''s union have sent the representation objecting

the said system with a copy marked to the Assistant Commissioner (Central) Labour, Madurai. It was based on the said representation and

objection made by them, in fact, the Labour Court has taken cognisance of the same and treated as an industrial dispute and kept the industrial

dispute in abeyance since the matter is before the Court by referring to the present writ petition. Therefore, according to the learned Counsel for

the respondent, while the Labour Court has in fact taken cognizance relating to the dispute, it is not open to the petitioner''s union to oppose the

same by the present writ petition.

It is also relevant to point out that the learned Counsel for the petitioner''s union while concluding his argument has stated that in the event of

this Court deciding the matter to be referred, to the Labour Court since it requires the question of evidence and relate to the interpretation of the

settlement, the interim arrangement made by this Court by an interim order passed in W.P.M.P. No. .3676 of 2006 dated April 25, 2006 by

which the members of the petitioner''s union were given certain concession by way of interim arrangement regarding the canteen facilities may be

directed to be continued.

While meeting the said suggestion made by the learned Counsel for the petitioner, the learned Counsel for the second respondent would submit

that it is not as if the matter which is referred to the Labour Court, has no power to deal with the same. Since the Labour Court has got the

jurisdiction to pass even an interim award u/s 2(b) of the Industrial Disputes Act. The Learned counsel for the respondent placed reliance on the

judgment of the Supreme Court rendered in Tata Engineering and Locomotive Company Limited Vs. Their Workmen, to show that when the vast

majority of the workers with eyes wide open have accepted a settlement, it should be presumed fair and just and cannot be ignored for the reason

that small number of workers were not parties to it or refused to accept it.

According to the learned Counsel for the respondents, when once nearly 75% of the workers have not raised any objection to the settlement,

the objection sought to be raised by the petitioner''s union has to be ignored.

I have considered the rival contentions of the learned Counsel for the petitioner as also the learned Counsel for the respondents and also

perused the entire records.

At the outset, eventhough it is the case of the petitioner''s union that the petitioner''s union consist of 120 members who are the workers of the

first respondent establishment, the representative strength of the petitioner''s union and also the other union specifically stated by the respondents in

the counter affidavit in the following terms namely:

S. No. Unions Representative Strength

Mineral Workers Union 26.86%

Kanyakumari District Mineral Workers & Staff Union 23.70%

I.R.E.L. Mazdoor Sangh(B.M.S) 21.22%

Anna Mineral Employees Union 19.41%

Indian Rare Earths Employees Union 8.35%

It has not been denied by the petitioner. Therefore, it remains a fact that the representative strength of the petitioner''s union is 26.86% of the total

number of workers. It is also not the case of the petitioner''s union that the other workers belonging to other union have raised any objection about

the change over of the system regarding the canteen facilities given to the employees of the first respondent organisation. The further fact that the

petitioner''s union by its representation dated March 29, 2006 has raised objection to the impugned notice dated March 28, 2006 and also

regarding Clause 20.1 of the settlement dated December 8, 2005 and the same has been marked and sent to the Assistant Commissioner Labour

(Central) Madurai is also not in dispute. Further, even a reference to the typed set of papers of the petitioner''s union would show that on the same

day namely on March 29, 2006, 63 workers belonging to the first respondent establishment have objected to the change over system by making

objection to the second respondent, marking copy to the Assistant Commissioner (Central) Labour, Madurai.

It is in this regard, the contention of the first respondent that out of the 63 persons who have signed in the said objection dated March 29,

2006, 50 workers are belonging to the petitioner''s union and the same has not been denied by the petitioner. Whileso, the fact remains that even

from out of the 120 members stated to be the members of the petitioner''s union, the 50 workers belonging to the petitioner''s union have

collectively raised their objection in their individual capacity and the learned Counsel would submit that the Labour Court has taken the matter as a

dispute and the matter has been deferred due to the pendency of this Writ petition and therefore, an Industrial Dispute in this regard is pending.

On merits of the case, the entire pleadings as also the arguments are advanced by both the sides would show that the petitioner''s union,

alongwith the respondent establishment and other union members having signed the settlement u/s 12(3) of the Industrial Disputes Act on

December 8, 2005, has chosen to raise an objection regarding the terms of some of the clauses of the said settlement especially in Clause No.

20.1 and 20.2.

The contention of the learned Counsel for the petitioner: is that the word ""Suggested"" in Clause 20.1 of the settlement should mean only an

offer made and not a concluded contract which has been objected by the respondents saying that the word ""suggested"" should be construed as

accepted"" because the subsequent word put an end to previous system of coupon system with effect from April 1, 2006 and therefore, the

construction should be only that in the circumstance, it should be treated as an acceptance. What is given under Clause 20.2 is only an alternative,

in the event of the non acceptance of the first clause.

The very fact that the learned Counsel for the petitioner himself would admit that except Clause 20.1, the other provisions of the agreement

were agreed and effected from the date of signing of the settlement, it shows that the settlement has come into effect. Further, in respect of certain

word and interpretation there is a dispute. While so, as rightly pointed out by the learned Counsel for the respondents, I am afraid that this Court

cannot interfere under Article 226 of the Constitution of India to resolve a dispute regarding the interpretation of a word in the settlement.

It is further more important, that it is not as if such dispute regarding the words of the settlement cannot be resolved by any other manner

known to law. It is in this regard relevant to point out Section 36-A of the Industrial Disputes Act which contemplates effective mechanism for the

settlement of the dispute regarding the interpretation of various terms of award including the settlement.

It is relevant to extract Section 36-A of the Industrial Disputes Act, which runs as follows:

(1) If, in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or

settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit.

(2) The Labour Court, Tribunal or National Tribunal to which such question is referred shall, after giving the parties an opportunity of being heard,

decide such question and its decision shall be final and binding on all such parties.

Further, even assuming that: there is a concluded contract and there is a breach of terms of the contract committed by the parties, it has

violated the service conditions as conferred, and therefore, the mechanism is provided for relief u/s 9-A of the Industrial Disputes Act. The remedy

to the affected party for redressal of the grievances is by raising the industrial disputes. On the facts of this case, as I have narrated earlier, the

petitioner''s union itself has admittedly while objecting to the change over of the service conditions as per the settlement, raised written objection on

March 29, 2006 and has sent a copy to the Assistant Commissioner Labour (Central) Madurai. That apart, while it should be taken for the reason

stated above 50 persons belonging to the petitioner''s union have in fact sent a written complaint to the Assistant Commissioner Labour (Central),

Madurai on the same day namely on March 29, 2006 along with other 13 workers objecting the change over system and the same has been infact

taken cognisance by the Labour Court and therefore, it cannot be said that the petitioner''s union has not raised objection before the Labour

authority for the purpose of redressal of their grievances. It is only after sending such copies to the Labour authority, the petitioner''s union has

chosen to file this present writ petition. In my considered view, the dispute must be resolved only by the Labour Court since it requires

interpretation of the words in the settlement entered u/s 12(3) of the Industrial Disputes Act. It is not open to the Petitioner''s union to

simultaneously file this writ petition.

As rightly pointed out by the learned Counsel for the respondents, a Division Bench of this Court in the judgment rendered in Indian Additives

Limited Chennai, v. Indian Additives Employees'' Union (Reg-No. 2229/MDS), rep., by its General Secretary, Chennai and Anr. (supra) has

categorically held in the following terms 2005 I LLJ 900:

Heard the learned Counsel appearing on either side. It appears that the first respondent Union has filed the writ petition against the appellant,

alleging violation of the provisions of Section 9-A of, the Industrial Disputes Act, 1947 (in Short ''the I.D. Act'') while altering the service

conditions of its members. It is well settled principle that when the dispute relates to the enforcement of a right or an obligation created under the

Act, then the only remedy available to the claimant is to get adjudication under that Act. In the present case, the grievance of the first respondent is

that the provisions of Section 9-A of the I.D. Act where breached by the appellant. If that is so, the first respondent''s remedy is by approaching

the appropriate forum created under the I.D. Act, viz., Board or Labour Court or Industrial Tribunal. Though there is a plethora of case laws on

this point, we would rely only on two decisions of the Supreme Court.

While concluding the Division Bench has also held in the following terms at p. 902:

In the present case, when the first respondent Union complains that the appellant had breached the provisions of Section 9-A of the I.D. Act,

the only remedy available to it is to raise an ''Industrial Dispute'' and seek adjudication of the same before the appropriate forum created under the

I.D. Act rather than approaching this Court under Article 226 of the Constitution by passing the alternative remedy available under the Act.

Therefore, in my considered view, the writ petition for the purpose of interpretation of the words of the settlement entered on December 8,

2005 is not maintainable in the circumstance that there is an effective alternative remedy available under the Industrial Disputes Act either u/s 9-A

or as provided u/s 36A of the Industrial Disputes Act. Eventhough, the learned Counsel for the respondent placed reliance upon the judgment of

the Hon''ble Supreme Court Tata Engineering and Locomotive Company Limited Vs. Their Workmen, to submit that when the vast majority has

accepted by eyes wide open to the terms of the settlement, the views of the minority has to be ignored, I am of the view that this Court need not go

(sic) into that aspect now, especially, when the Labour Court is authority to decide the factual situation about the interpretation of the terms

especially relating to Clause 20.1 of the settlement entered u/s 12(3) of the Industrial Disputes Act dated December 8, 2005.

Further suggestion made by the learned Counsel for the petitioner that even in the event of the dispute to the Labour Court, this Court can

continue the interim arrangement as passed on April 25, 2006. That was purely an interim order pending disposal of the writ petition.

In my considered view, when the Labour Court has got powers to pass interim award based on the evidence and circumstance since the term''

''award'' is wide enough to include interim award u/s 2(b) of the Industrial Disputes Act no such interim arrangements need be made by this Court

pending decision of the Labour Court. It is always open to the petitioner either to proceed with the Industrial Dispute or to raise fresh dispute and

also seek for interim award from the Labour Court pending passing of the final award.

In view of the same, looking into any angle and I do not think that the writ petition is maintainable and therefore, the writ petition fails and the

same is dismissed. No costs. Consequently, connected W.P.M.P. and W.V.M.P. are also closed.