JUDGMENT [ENTITY], J.
1. An award dated March 16, 1995 passed by the 8th Industrial Tribunal, West Bengal is the subject matter of this writ application.
2. The following disputes were referred to the Tribunal:
"1. Whether the Management of Engineering Projects (India) Limited is justified in terminating the service of Sri [ENTITY], Electrician, after a continuous service of more than 240 days?
2. To what relief if any is he entitled to?"
By the award impugned herein the Tribunal had answered those issues in favour of the employer holding that the employer was justified in terminating the service of the employee and that the employee was not entitled to any relief.
3. There is no dispute that the petitioner was appointed initially at the rate of Rs. 30/- a day but subsequently, the said amount was enhanced to Rs. 41.50 paise a day and ultimately his salary was Rs. 900/- a month. There is also no dispute that the petitioner had worked for more than 240 days within a period of twelve months preceding his termination. By a telegram dated April 10, 1992, the petitioner was communicated that his service was no more required and as such he was terminated with immediate effect. It was further mentioned that the said telegram might be treated as termination notice of his temporary employment. In the said telegram it was further stated that the letter giving details of the terminal benefits/dues and the cheque would follow. Thereafter, by a letter dated April 11, 1992 the service of the petitioner was terminated and at the bottom of the said letter it was stated that A/c Payee cheque bearing No. 188165 dated September 8, 1992 was annexed as terminal dues. Although the notice of termination was issued on April 11, 1992 but the same was posted on April 12, 1992. Subsequently, there was a paper publication in two daily newspapers viz. The Telegraph and Aajkal on April 27, 1992 and from the said publication it would appear that the termination was effected on April 13, 1992 and that the legal dues were being sent.
4. From the aforesaid fact it is clear that terminal benefit in terms of [SECTION] of the [ACT]) was not paid on or before April 13, 1992.
5. As indicated above, disputes concerning validity of termination were referred to the Tribunal for determination. By the award impugned herein, the Tribunal below held that subsequently there was a tripartite agreement held on July 9, 1992 before [ENTITY], Deputy Labour Commissioner in respect of the dispute between the said employer and the workmen represented by All India EPI Sites Employees' Union over the termination of employment of the site workmen arising out of the closure of the project work. On the basis of such agreement, some of the workers were retained in the company and on the basis of such agreement 32 out of 33 workmen had already taken the terminal benefits. The present petitioner is the only employee, who had not taken any such benefit. The Tribunal was of the view that the settlement was legal and binding on the parties and the order of reference was thus incompetent and without jurisdiction.
6. Ultimately, the Tribunal held that the management was justified in terminating the service of the petitioner. Being dissatisfied, the employee has come up with the instant writ application.
7. Mr. [ENTITY], the learned counsel appearing on behalf of the petitioner by relying upon the aforesaid fact mentioned above has firstly contended that even if the termination of the service is taken to have been effected from April 13, 1992, the employer not having paid any amount in terms of [SECTION] of the Act at the time of such retrenchment, the said order should be held to be invalid. Mr. [ENTITY] by referring to the Annexure 'M' to the instant writ application viz. the minutes of the meeting held on July 9, 1992 contends that the said minutes cannot be said to be 'settlement' within the meaning of [SECTION] of the Act. Mr. [ENTITY] further submits that it will appear from the various clauses of the said minutes that the project did not come to an end and such being the position, the termination must be held to be invalid for non- compliance of [SECTION] of the Act. Mr. [ENTITY] further submits that the said agreement, being Annexure 'M' to the instant writ application, cannot be said to be a tripartite agreement between the parties in view of the fact that the same was not in conformity with [SECTION] of the [ACT] and as such the same cannot be relied upon.
8. Mr. [ENTITY], the learned counsel appearing on behalf of the respondent on the other hand has submitted that the Annexure 'M' to the instant writ application should be treated as a 'settlement' under [SECTION] with [SECTION] of the Act, as the said settlement was reached in course of a conciliation proceeding. According to Mr. [ENTITY], such agreement is not required to follow the provisions of [SECTION] of the [ACT]. The said provision of the Rule, Mr. [ENTITY] contends, is mandatory only in case of a bipartite agreement but not in case of tripartite agreement arrived in course of conciliation proceeding. Mr. [ENTITY] therefore submits that the Tribunal rightly relied upon such minutes and concluded that in view of such settlement between the parties there was no dispute.
9. Mr. [ENTITY] further submits that in this case there was a closure of the establishment and as such the Tribunal cannot pass a direction for reinstatement. Mr. [ENTITY] further submits that the petitioner being a temporary workman was not entitled to the benefit of [SECTION] of the Act.
10. Mr. [ENTITY] lastly submits that the petitioner even having relied upon the minutes of the tripartite agreement cannot now contend before this court that the said agreement was invalid agreement, not in tune with the formalities required under the Rules framed under [ACT]. After hearing the learned counsel for the parties and after going through the materials on record, I am at one with Mr. [ENTITY] that even if the petitioner is a temporary employee he having undisputedly worked for more than 240 days preceding 12 months from the date of termination was entitled to the benefit of [SECTION] of the Act. There is also no dispute that along with the order of termination, no monetary benefit in terms of [SECTION] of the Act was paid to the petitioner. In view of the aforesaid admitted fact, the termination must be held to be invalid unless the employer can establish that there has been a subsequent valid settlement binding upon the parties or that there was a closure of the industry.
11. That there has been no closure of the industry would appear from the Annexure 'M' itself which would show that the management decided to restart the work of the above mentioned project within two weeks from July 9, 1992 and it is not even the case of the employer that Annexure 'M' has not been given effect to. Thus there was the material before Court to show that the project did not come to an end.
12. The next question is whether Annexure 'M', the minutes of the so-called tripartite agreement could be said to be a 'settlement' within the meaning of [SECTION] of the Act, There is no dispute that the said agreement was not in compliance with [SECTION] and the schedule of the [ACT] framed under the Act. I do not find any substance in the Contention of Mr. [ENTITY] that the provisions of the Rules are mandatory only in case of bipartite agreement. As pointed out by the Supreme Court in the case of [PRECEDENT] the provisions contained in the [ACT] are mandatory in nature and unless a settlement conforms to the Rules, the same cannot be said to be a valid settlement within the meaning of [SECTION] of the Act. It was further pointed out by the Apex Court in the said decision that the [SECTION] of the Act does not vest in management and the Union unfettered freedom to settle the dispute as they please nor does it clothe with a binding effect on all workmen or even on all member workmen of the Union. The settlement must be made in compliance with the statutory provision.
13. I am therefore unable to accept the contention of Mr. [ENTITY] that a tripartite agreement in course of conciliation proceeding is not required to follow the mandatory form prescribed in the [ACT]. In this case there is no dispute that the said agreement has not followed the said mandatory provision. Such being the position, the petitioner is not bound by the terms thereof. Therefore, such settlement was not binding upon the petitioner.
14. As regards the other contention of Mr. [ENTITY] that the petitioner relied upon the terms of the agreement in the written statement and as such should be estopped from disputing the correctness thereof, in my view, such contention is not tenable. There is no dispute that the petitioner has not taken any benefit under the agreement by acceptance of the money which the other 32 employees did. Therefore, simply because in the writ statement filed by the petitioner there is reference of such agreement, such fact does not follow that the petitioner has accepted the terms thereof. The provisions contained in the [ACT] being mandatory, there cannot be any waiver against statute. Therefore, the Tribunal acted illegally in holding that there was a binding settlement between the parties prohibiting the petitioner from disputing the validity of the so-called settlement.
15. I now propose to consider the decisions relied upon by Mr. [ENTITY], the learned counsel appearing on behalf of the respondent/employer,
16. In the case of [PRECEDENT], it was held that [SECTION] was not applicable to daily rated casual worker. In this case, the petitioner was a temporary workman but having undisputedly worked for more than 240 days as would appear from the terms of reference itself, [SECTION] is clearly applicable. Thus, the said decision has no application to the fact of the present case.
17. In the case of [PRECEDENT], from the materials available on record it was evident that the management had not terminated or removed the respondent from service and as such the award was held to be illegal on the face of the record. Therefore, the said decision does not help the employer in any way.
18. The case of [PRECEDENT]. has no application to the fact of the present case. In the said case closure of one of the two units of the Company carrying on same kind of business was held to be justified as on the fact of the said case two units were found to be separate and independent.
19. In the case of [PRECEDENT] it was held that reference on a settled issue was bad. I have already pointed out that the alleged agreement was not binding upon the petitioner and as such it cannot be said that the issue was settled.
20. In the case of [PRECEDENT] , it was held that if a settlement has been accepted by majority of the workers, refusal by a small number of workers does not invalidate the settlement. In my view, the principle laid down in the said case cannot have any application to the present one where there has been no valid settlement in accordance with the [ACT].
21. Similarly, in the case of [PRECEDENT] or in the case of [PRECEDENT]. , the settlements were found to be legal and as such a reference of dispute on the selfsame point was held to be illegal. Such is not a case before us.
22. The cases of [PRECEDENT] and Hindustan Steel Works Construction Ltd. and [PRECEDENT]. , have no factual application to the fact of the present case. I have already found that on the question of closure, the Annexure 'M' will disclose that the industry has not been closed.
23. The other two decisions, one in the case of the [PRECEDENT]. and the other in the case of [PRECEDENT]. are also irrelevant in view of my finding that the industry in this case was not closed.
24. On consideration of the entire materials on record, I thus find that the Tribunal below erred in holding that the question of termination was settled by a valid settlement.
25. In view of my finding that the provisions of [SECTION] of the Act has not been complied with by payment of the benefit, the termination must be held to be illegal and the petitioner should get an order of reinstatement with full back wages. I thus set aside the award and direct the respondent No. 3 to reinstate the petitioner with full back wages immediately.
26. The writ application thus succeeds.
27. In the fact of the present case there will be however no order as to costs.
28. After the order is passed, the learned advocate for the petitioner prays for stay of operation of this order.
29. After hearing the learned counsel for the parties, I grant stay for a period of two weeks after reopening.
30. Let xerox certified copy of the order be given one day after re-opening.