1 WP3738.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3738 OF 2011 Vidyut Metalics Employees Union, Thane. ... Petitioner v/s 1. Vidyut Metallics Pvt. Ltd., Thane 2. Supermax Personal Care Pvt. Ltd. 3. State of Maharashtra 4. Asstt. Commissioner of Labour, Thane 5. Maharashtra Rajya Rashtriya Kamgar Sangh. ... Respondents Mr.A.K.Jalisatgi i/by Ms.Vaishali U. Jain for the petitioner. Mr.K.M.Naik, Sr. Advocate i/by S.P.Salkar for Resp. No.1. Ms.Seema K. Chopda for respondent No.5. CORAM: B.H.MARLAPALLE & SMT.NISHITA MHATRE, JJ. DATED: 5TH SEPTEMBER, 2011 P.C.(Per Smt.Mhatre, J.) 1. Rule. Rule made returnable forthwith by consent of the parties. 2. Heard. 2 WP3738.11 3. The question involved in the present petition is regarding the scope of the powers of the Conciliation Officer under Section 12(5) of the Industrial Disputes Act, 1947 (in short, “the I.D.Act”). 4. The petition has been preferred by a Trade Union against the decision of the Conciliation Officer i.e. respondent No.4, dated 5.2.2011. By the impugned order, respondent No.4 has directed that the bipartite settlement signed between respondent No.1 Company and respondent No.5 Union will be considered as a tripartite settlement and will bind all workmen employed by respondent No.1. 5. The workmen employed by respondent No.1 were members of a trade union known as Kamgar Sabha which was functioning in the Company prior to the year 2000. It was accorded status of a recognized union under the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (in short, “the MRTU & PULP Act”). However, all the workmen joined the petitioner union after the year 2000. An application was filed by the petitioner before the Industrial Court for cancellation of the recognition granted to the Kamgar Sabha and for recognition in its place. After recording a finding that an overwhelming 3 WP3738.11 majority of employees of respondent No.1 were members of the petitioner, the Industrial Court dismissed the application of the petitioner. Aggrieved by this decision, the petitioner preferred Writ Petition No.6838 of 2004 which was admitted on 21.12.2004. Considering the submissions advanced on behalf of the petitioner and the respondent Company, by way of an interim arrangement, the petitioner union was permitted by this Court to enter into negotiations with the Company and to execute any agreement or settlement with regard to the service conditions of the employees of the Company. 6. Accordingly, settlements were signed by the petitioner with the respondent Company in conciliation on 7.1.2005 and 2.2.2006. Being aggrieved by the settlement dated 2.2.2006, respondent No.5 challenged the settlement by filing Writ Petition No.8641 of 2007 before this Court. That petition has been admitted and is pending final hearing. 7. A fresh charter of demands was submitted by the petitioner on behalf of employees of the respondent Company on 2.1.2010. The charter of demands was with respect to the general demands. The demands were not conceded by the respondent Company on the ground that it was facing 4 WP3738.11 financial constraints. Later, a settlement was signed by the respondent Company with the respondent union which also related to general demands. Since the petitioner’s demands were not acceded to by the respondent Company, the petitioner moved the machinery available under the the I.D.Act for settlement of its demands. A justification statement in respect of its charter of demands was submitted by the petitioner before the Conciliation Officer. A meeting was convened by respondent No.4 between the petitioner and the respondent Company. However, the representatives of the petitioner could not attend the meeting since they received the intimation about the meeting, late. It appears that another meeting was fixed on 5.5.2010 by respondent No.4. The intimation regarding that meeting was also sent late to the petitioner. The next meeting was fixed on 12.8.2010 when the petitioner’s representatives appeared. However, an adjournment had already been granted by respondent No.4 to some persons posed as office bearers of the petitioner and the matter had been adjourned to 16.8.2010. On that day, respondent No.5 submitted its charter of demands. On 16.8.2010 respondent No.5 submitted its objections to the charter of demands, although, according to the petitioner, it had no right to do so. The proceedings were then adjourned to 31.8.2010. The 5 WP3738.11 petitioner objected to the intervention by respondent No.5 as according to it respondent No.5 could not raise any objections regarding the petitioner’s demands. The petitioner’s demands were admitted in conciliation on 27.9.2010 while the demands of respondent No.5 were admitted on 5.11.2010 in conciliation. On 19.10.2010, respondent Nos.1 and 5 jointly submitted an application to respondent No.5 indicating that they had entered into an agreement on 11.10.2010 with respect to the service conditions of the workmen employed by respondent No.1. The petitioner objected to the agreement being accepted by respondent No.4 as it would not be binding on the petitioner’s members. Subsequently, the petitioner received a letter from respondent No.4 on 27.1.2011 indicating that the bipartite settlement between respondent Nos.1 and 5 would be treated as a tripartite settlement and would bind all the workmen. The petitioner objected to this procedure being adopted by the Conciliation Officer as the Conciliation Officer was duty bound to record a settlement or a failure with respect to the petitioner’s charter of demands. Although a separate order was not passed by respondent No. 4 with regard to the settlement between respondent Nos.1 and 5 being treated as a settlement under Section 18(3) of the I.D. Act, respondent No.4 noted her decision in the roznama on 5.2.2011. Hence the present petition. 6 WP3738.11 8. We have heard the learned counsel for the respective parties and, in our opinion, respondent No.4 has erred in passing the impugned order. The charter of demands submitted by the petitioner ought to have been taken to its logical conclusion by the Conciliation officer by either recording a settlement or a failure report as required under Section 12 of the I.D. Act. It is incumbent on the Conciliation officer to take such steps as may be required for the purpose of bringing about a fair and amicable settlement of an industrial dispute. If such a settlement is not possible, the Conciliation Officer must send a failure report to the appropriate Government indicating the steps undertaken by him/her for bringing about a settlement and must submit reasons which, in his/her opinion, were responsible for such a failure. 9. In the present case, the charter of demands were submitted by the petitioner on 2.1.2010 to respondent No.1. The demands were admitted in conciliation on 27.9.2010. Therefore, it was the bounden duty of the conciliation officer to either record a settlement in terms of the charter of demands submitted by the petitioner or to submit a failure report. In the instant case, the Conciliation Officer, instead, has considered a settlement signed between respondent Nos. 7 WP3738.11 1 and 5. This settlement has been signed under Section 2(p) read with Section 18(1) of the I.D.Act and Rule 62 of the Industrial Disputes (Bombay) Rules, 1957. The question of adopting this settlement as a settlement under Section 18(3) of the I.D.Act does not arise as it was not a settlement arrived at with respect to the charter of demands submitted by the petitioner. Therefore, it could not be termed as a settlement in conciliation, which would be binding on the members of the petitioner. 10. Apart from this, the impugned order indicates that respondent No.4 i.e. the Conciliation Officer has adjudicated on the issue and found that the settlement signed between respondent Nos.1 and 5 was fair and proper and that the workers had benefitted financially due to the settlement. These issues cannot be considered by a Conciliation Officer when dealing with two sets of demands submitted by two different unions. It is not within the province or jurisdiction vested in the Conciliation Officer to record such findings. That is within the ambit of the powers vested in the Industrial Tribunal under the I.D.Act. 11. It must also be noted here that the petitioner was specifically permitted to raise an industrial dispute with 8 WP3738.11 respect to the general demands although it was not the recognized union, by the interim order passed by this Court on 21.12.2004 in Writ Petition No.6838 of 2004. Respondent No.5, in any case, could be permitted to raise an industrial dispute with respect to general demands when there was no such order passed by this Court in the writ petition and admittedly it was not the recognized union under the MRTU & PULP Act. 12. In these circumstances, in our opinion, the Conciliation Officer has encroached upon the jurisdiction of the Industrial Court and, therefore, the impugned order must be set aside. Accordingly, the impugned order dated 5.2.2011 directing that the settlement signed between respondent Nos.1 and 5 will be treated as a tripartite settlement, is set aside. 13. Rule made absolute accordingly. No order as to costs. (SMT.NISHITA MHATRE, J.) (B.H.MARLAPALLE, J.) 9 WP3738.11