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Judgment
Since the parties to the above proceedings are one and the same and the issues arising for consideration overlap and common submissions have
been made, they are dealt with together.
W.P. 15637 of 1988 has been filed for the issue of a writ of mandamus, directing the respondents not to take any steps against the petitioner for
the alleged violation and non-implementation of the decision dated October 31, 1988 of Thiru. S. Rajasubramanian, formerly Commissioner of
Labour and now Sub-Collector, Tindivanam as the said decision cannot be equated to an ""Award"" in pursuance of the letter dated December 2,
1988.
W.P. 15638 of 1988 has been filed for the issue of a writ of declaration, declaring that the communication dated October 31, 1988 from Thiru.
S. Rajasubramanian formerly Commissioner of Labour, Madras, now Sub-Collector, Tindivanam cannot be equated to an ""Award"" under the
provision of the Industrial Disputes Act and the Rules framed thereunder and consequently to hold that the petitioner herein cannot be held bound
by the same.
The petitioner, in the common and identical affidavit filed in support of the above writ petitions, states as follows :- Referring to the factual
background relating to the ownership of the petitioner-company prior to 1978 and thereafter, it is contended that on November 27, 1986 M/s. (1)
V. Chellam (2) Jesu Tamil Mani (3) V. Muniaswamy and (4) P. Chandrasekar were suspended, pending enquiry into the charges and in the
meanwhile, the petitioner received a strike notice from the Connemara Hotel Employees Union dated December 3, 1986 informing the
management that the workers would go on a strike on or after December 16, 1986 for alleged unfair labour practice. Domestic enquiry as regards
the charge sheets framed against the above mentioned four workmen was said to have commenced with effect from January 15, 1987 and was in
progress. During the progress of the enquiry, it is claimed the petitioner has received notice from the Labour Officer-II and thereupon they
participated in the proceedings before the Labour Officer. Another strike notice dated December 14, 1987 was also said to have been received
from the Connemara Hotel Employees Union and the management seems to have forwarded the letter to the Labour Commissioner setting forth in
detail the industrial relation scene at Connemara Hotel and with reference to the said strike notice also, a letter dated December 18, 1987 was said
to have been received asking the petitioner to appear before the Labour Officer-II. It is claimed that the workers were adopting dilatory tactics
and at that stage, the then Commissioner of Labour Mr. Rajasubramanian is said to have called the management and the Union representing the
above mentioned four workmen for talks and a 12(3) settlement dated February 18, 1988 was entered into. The terms of the Settlement are said
to be as follows :-
It is agreed that the issue of the following workers will be decided by Mr. S. Rajasubramaniam, I.A.S. Commissioner of Labour as final and
binding :
Thiru. V. Chellam
Thiru. Jesu Tamil Nadu
Thiru. V. Muniaswamy; and
Thiru. P. Chandrashekar.
It is also agreed that the management will produce enquiry proceedings upto findings (they should not be imposed any punishment) before March
2, 1988.
While so, the enquiry findings as contemplated under the Settlement seem to have forwarded to the then Commissioner of Labour Thiru. K.
Malaiswamy on July 18, 1988 and August 3, 1988. It is also stated in the affidavit that the petitioner management received a latter dated August
18, 1988 from Thiru. S. Rajasubramaniam with a copy marked to the Union concerned, calling upon the parties to meet him for a discussion with
all relevant records. The management admittedly appeared before the said Rajasubramaniam and as could be seen from the decision rendered by
the said Rajasubramaniam on October 31, 1988 and from time to time, the parties, both management as well as the workers'' representatives,
were presenting themselves and making their respective submissions. In the decision dated October 31, 1988, the said Rajasubramaniam
concluded his proceedings and passed the following order :-
Since both the parties have agreed to abide by my decision, after weighing both sides'' arguments and the documents filed before me and in order
to discipline the workmen I order as under :-
The management shall issue suspension order for ten days as specific punishment after the receipt of this order. For the period of suspension
pending enquiry, the workmen will not be eligible for any benefits other than the subsistence Allowance. However, they are allowed continuity of
service.
Thereupon, on December 2, 1988, the Assistant Commissioner of Labour (Head Quarters) was said to have issued a communication to the
management calling upon them to show-cause as to why action should not be taken against the management for the alleged violation of the
settlement u/s 12(3) of the Act dated February 18, 1988 and also for not implementing the resultant award dated October 31, 1988 passed by
Rajasubramaniam, former Commissioner of Labour.
The management seems to be of the view that S. Rajasubramaniam has exceeded the terms of the settlement in directing the management on the
course of action should take, which is the prerogative of the management and which has not been abrogated in the terms of the settlement dated
February 18, 1988 and consequently failing compliance with the same, which according to the petitioner, has no sanctity of law, the above writ
petitions have been filed. An Additional Affidavit has also been filed on behalf of the petitioner bringing it to the notice of this Court that
subsequently, by an order of dismissal dated November 4, 1988 passed by the management, the services of the four workmen were put an end to
and that talks were held by the management and the workmen before the Special Deputy Commissioner of Labour who recorded a proceeding on
May 23, 1989, that with regard to the issue regarding non-employment of 4 workmen, the parties will pursue further negotiations to arrive at an
amicable and conclusive settlement based on the advice of the Special Deputy Commissioner of Labour. It is further stated therein that thereafter
V. Chellam resigned and a settlement u/s 18(1) of the Industrial Disputes Act dated October 7, 1989 was entered into with him and he is said to
have received amounts in full and final settlement of all his claims against the management. Likewise, M. J. Tamilmani appears to have accepted the
order of termination dated November 4, 1988 and entered into a settlement u/s 12(3) dated May 29, 1990 in full and final settlement of all his
claims after receiving the money. So far as the remaining two workmen viz. Mr. V. Muniaswamy and P. Chandra Sekaran are concerned, they are
said to have raised disputes before the Labour Officer and no their failure in the conciliation proceedings, the matter seems to be now pending
before the I Additional Labour Court, Madras in I.D. No. 206 of 1991 (V. Muniaswamy) and I.D. No. 522 of 1990 (P. Chandra Sekaran).
Mr. Sanjay Mohan, learned counsel appearing for the petitioner, While reiterating the submissions made in the pleadings, contended as follows
:- (1) The settlement dated February 18, 1988 is no settlement under the Industrial Disputes Act, 1948 and it is only an agreement, the reason
being an agreement will not be a settlement. According to the learned counsel, the settlement dated February 18, 1988 does not conform to the
requirements of Section 2(p) of the Act. Reliance is placed upon the decision of this Court in The Special Officer of The Management of T.U.C.S.
Ltd., Madras-5 Vs. S. Loganathan and D. Nampillai, . The decision of Rajasubramaniam dated October 31, 1988 is not an award, because the
requirements of the Industrial Disputes Act having not been complied with in that neither the settlement dated February 18, 1988 nor the decision
dated October 31, 1988 has been published in the Government Gazette as required under the provisions of the Industrial Disputes Act. (3) On the
date of the decision viz., October 31, 1988 as could be seen from the very proceeding, Rajasubramaniam was not the Commissioner of Labour
and, therefore, his award was non-est and a nullity. (4) Inasmuch as the two workers have already got their claims settled in full and final and
ceased to be in the employment of the petitioner and the two surviving workers raised disputes before the Labour Court which are pending, the
question of their non-employment or the question of taking further action on the settlement dated February 18, 1988 or the decision dated October
31, 1988 does not arise and that the claims of the workers if any have to be got adjudicated in the proceedings before the Labour Court. Learned
Counsel for the petitioner relied upon the decisions in Ramakrishna Kulwantrai Steels (P) Ltd. v. Their workmen 1977 I LLJ 382 , Krishnaveni
Transports and Others Vs. Special Deputy Commissioner of Labour, Madras and Others, , Karnal Leather Karamchari Sanghatan (Regd.) Vs.
Liberty Footwear Company (Redg.) and others, ; St. George I.T. Centre Vs. George K. John, and Kathayee Cotton Mills Ltd. Vs. District
Labour Officer and Others, in support of the Submission that the absence of publication of the agreement and failure to comply with the procedure
prescribed u/s 10-A(3) of the Industrial Disputes Act and Section 17 renders the proceedings sought to be enforced illegal and unenforceable so
far as the writ petitioner is concerned.
Mr. T. Fenn Walter, learned counsel appearing for the third respondent-Union, submitted that the decisions relied upon by the learned counsel
for the petitioner turns on the facts and circumstances of the case and the issues considered therein and that so far as the present case is
concerned, the writ petitioner admittedly entered into a settlement u/s 12(3) of the Industrial Disputes Act, 1947 and having agreed to abide by the
decision of Rajasubramaniam, Commissioner of Labour which has also been agreed to be final and binding and having further participated at all
relevant points of time in the proceedings before him the petitioners are not entitled to resile back from the stand taken earlier and file these writ
petitions invoking the extraordinary jurisdiction of this Court under Article 225 of the Constitution of India. The learned counsel further submitted
that the relief as prayed for is unjust and inequitable and this Court should not grant any relief in favour of the petitioner, and the conduct of the
petitioner should be considered to be a disentitling factor in the writ petitioner either invoking or getting the relief from this Court under Article 226
of Constitution of India. The learned counsel also submitted that the terms of settlement were that the matter should be left to the decision of S.
Rajasubramaniam and that the parties to the said decision being final and binding and the fact that he was holding the post of Commissioner of
Labour by the office. Consequently, according to the learned counsel for the third respondent union the fact that the said Rajasubramaniam was
shifted from the position of Commissioner of Labour did not really matter particularly when without any objection or protest, the writ petitioner
participated by making his appearance and taking part in the proceedings before him.
I have carefully considered the submissions of the learned counsel appearing on either side and in my view, the writ petitioner will not be entitled
to invoke the jurisdiction of this Court under Article 226 of the Constitutional of India for more than one reason. The petitioner admittedly entered
into a settlement u/s 12(3) of the Industrial Disputes Act and that the petitioner participated in all subsequent follow-up action without raising any
objection or protest to the court of action adopted by the person nominated for the purpose in spite of the fact that the notices issued for such
enquiry specifically referred to the settlement having been entered into u/s 12(3) of the Act. Likewise, no objection was raised to the continuance
of the proceedings by Rajasubramaniam and the petitioner participated in the proceedings before him. It is only when the diocesan was not to the
acceptance of the writ petition, they have thought fit to resile from their steps and by taking an attitude of reprobation has come up with the above
writ petitions. The said conduct and attitude, in my view, disentitle them from invoking the extraordinary jurisdiction of this Court. Participating in
the proceedings, taking a chance for a decision in their favour without any objection and also giving an impression that they are acting upon or
adhering to the terms of the settlement and thereby they having subjected themselves to such proceedings, it is not open to them and as a matter of
fact they are estopped from resiling their steps and this Court, in the exercise of its extraordinary jurisdiction, ought not to lend its helping hand to
such a person to wriggle out of the solemn commitments made. That apart, the notice in question is only a show-cause notice calling upon them to
show-cause as to why for the alleged non-compliance with the proceedings referred to therein, action should not be taken u/s 29 of the Industrial
Disputes Act. Section 29 of the Industrial Disputes Act only provides for prosecution for the alleged offence of committing a breach of any term of
any settlement or an Award. The petitioner should first of all show cause against the proposed action to the authority which has issued the notice
and invite a decision on their submissions or objections. Even if a prosecution is lodged, the petitioner could not be said to be in any way
prejudiced since it would be always open to them to contend before the Court concerned that the essential ingredients warranting their prosecution
do not exist and convince the said Court of the illegality and futility of the prosecution. While so, it is not open to the petitioner to forestall the
competent authorities and statutory functionaries from exercising their powers by rushing up to this Court seeking for a decision of the various
issued. For all these reasons, I consider that the petitioner will be disentitled to the relief sought for from this Court and this Court would be well
justified in declining to interfere in the matter, in exercise of its undoubted discretion.
The above writ petitions deserve to be dismissed also without going in to the merits of the claim on yet another ground. The learned counsel also
raised a plea that reference was one falling within the scope of Section 10-A of the Act and that being the position, the failure to comply with the
procedural prescriptions contained therein vitiates the consequent awards said to have been made. The decisions relied upon for the petitioner
relating to this aspect themselves would go to show that in those cases the writ petitions were held on the view to be maintainable that the
proceedings which were the subject matter in those case were referrable to Section 10-A. So far as the present case is concerned, even the very
submissions of the learned counsel for the petitioner proceeds on the ground that neither the 12(3) settlement can be said to be the statutory
settlement nor the decision could be said to be an award as contemplated u/s 2(p). As a matter of fact, the learned counsel in support of the said
stand placed heavy reliance upon the stand taken in the counter affidavit that the decision given by the second respondent is not an award as
contemplated u/s 10-A of the Act, but it should be deemed to be an award only for the purposes of implementation by the petitioner. In para 9 of
the Counter Affidavit on which much reliance was placed by the counsel for the petitioner, it has been contended as follows :-
The award/decision given by the second respondent is not an award as referred to u/s 10-A of the Industrial Disputes Act and that therefore, the
procedures laid down u/s 10-A need not be complied with.
In the case before the Full Bench in the decision reported in 1977 I LLJ 382 , at the time of argument, there was a change in the stand taken in the
counter affidavit and it was actually contended that the decision or award was one u/s 10-A of the Act. No such submission disowning the stand
taken in the counter affidavit of the respondent which the learned counsel for the petitioner also want to take advantage of, had been taken before
me. If it is to be that as contended by the counsel for the petitioner, the settlement as well as the decision/award cannot be considered to be one as
contemplated in law and the referrable to any provisions of the Act, it is all the more necessary that the writ petition has to be rejected as not
maintainable and consequently this Court cannot enter upon an adjudication of the validity of such non-statutory orders. In view of the above
conclusions, I am not going into the other issues raised on behalf of the petitioner.
For all the reasons stated above, the writ petitions fail and shall stand dismissed but in the circumstances there will be no order as to costs.