IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 15179 of 2010 (O&M) Date of Decision:8.4.2011. The Palwal Cooperative Sugar Mills Employees Union --Petitioner Versus Haryana State Federation of Cooperative Sugar Mills Ltd. and another --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. J.S. Hooda, Advocate for the petitioner. *** PERMOD KOHLI.J (ORAL) The petitioner is a registered union of the employees/workers of “The Palwal Cooperative Sugar Mills”. Petitioner has challenged a decision of the Cooperative Sugar Mills Palwal dated 8.4.2010. In a meeting of the Managing Directors of all the cooperative sugar mills held on 8.4.2010, wherein following decisions were taken:- “1. The facility of holidays on Saturday during off season in Palwal Sugar Mills is to be withdrawn. No Holiday on Saturday can be observed as it is against the provision of the Factory Act which prescribes minimum number of factory hours. However, 2nd Saturday can be kept off during off season till September, provided, the work of the Mill does not suffer. 3. The facility of payment of retaining allowance per month. During deliberations it emerged that no Mill is providing this facility to workers except Palwal Coop. Sugar Mills. The M.D. Sugarfed desired that Palwal Sugar Mills should stop this facility with immediate effect as the same is against legal provision. However, if any worker wants to avail the facility of monthly payment of retaining allowance, then he will have to defer the payment of retaining allowance on monthly basis after the close of the season, which as per present practice is paid to him in lumpsum in the middle of the crushing season. This had been conveyed earlier also CWP. No. 15179 of 2010 (O&M) -2- to the sugar mills vide this office circular No.SMF-2006/Estt./10277-78, dated 20.2.2006. This chapter stands disposed finally and further correspondence on this issue will not be entertained.” The contention raised on behalf of the petitioner-union is that the employees' union earlier entered into a settlement with the management of the Palwal Cooperative Sugar Mills Ltd., Palwal on 2.11.1989 and 2.2.2006, whereunder demands of the union were accepted for treating the Second Saturday as holiday and the seasonal workers were allowed retaining allowance of the off season on monthly basis as well. The first settlement is said to be made on 2.11.1989 (Annexure P-2) which reads as under:- “ On the demand notice of union bearing Sr. No.P.C.S.M. K.U.- 89-90, dated 3.1.1989, following settlement has been effected on the demands: Demand No.1: The demand of declaring second Saturday as holiday has been accepted.” The second decision is dated 2.2.2006 which reads as under:- “ Demand No.3: This demand was considered and it emerged that the seasonal workers are entitled for the retaining allowance of the off- season on joining the duty in the next crushing season. Therefore, it was decided that seasonal workers either may take their retaining allowance of preceding off-season in lumpsum on joining the duty in the crushing season which became due to them as per the existing practice or may take the retaining allowance after closure of this crushing season on monthly basis.” The case of the petitioner is that the settlement has been withdrawn unilaterally by the management on 8.4.2010. This writ petition has been, thus, filed challenging the decision of the withdrawal of the earlier benefits granted to the employees under the aforementioned settlement. CWP. No. 15179 of 2010 (O&M) -3- It is not in dispute that the cooperative sugar mills come within the definition of industry. The settlement has been defined under Section 2 (p) of the Industrial Disputes Act, 1947 and reads as under:- “ (p) “settlement” means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorized in this behalf by the appropriate Govt. and the conciliation officer.” Admittedly, no settlement had took place during the conciliation proceedings. At the most it can be termed as a written agreement between the employers and workmen arrived at otherwise than in the course of conciliation proceedings. However, it is the requirement of the law that where such an agreement is signed by the parties in the manner prescribed, a copy of the same is to be sent to an officer authorized in this behalf by the appropriate Govt. and the Conciliation Officer. There is no averment in the writ petition that the settlement arrived at between the parties was signed in the prescribed manner and copy thereof was sent to an officer authorized by the appropriate Govt. Under Section 18 of the Industrial Disputes Act, a settlement arrived at between the employer and the workmen otherwise than in the course of conciliation proceedings is binding upon the parties to the agreement. The petitioner has invoked writ jurisdiction of this Court for settlement of their industrial dispute. There is no manner of dispute that breach of settlement or withdrawal thereof, amounts to a dispute between a management and the workmen. Section 2 (k) of the Industrial Disputes Act defines industrial dispute and reads as under:- CWP. No. 15179 of 2010 (O&M) -4- “ (k) “industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, or any persons.” The dispute sought to be raised, thus, falls within the purview of ndustrial disputes defined under Section 2 (k). Where the industrial dispute has risen between the employer and workmen, the aggrieved party is entitled to seek reference under Section 10 of the Industrial Disputes Act. The relevant extract is as under:- “ 10. Reference of disputes to Boards, Courts or Tribunals- (1) Where the appropriate Govt. is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing- (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with or relevant to the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to the dispute whether it relates to any matter specified in the Second Schedule or the Third Schedule to a Tribunal for adjudication; Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Govt. may, if it so thinks fit, make the reference to a Labour Court under clause (c).” Various modes of settlement have been provided under this section. Under clause (1)(c) of Section 10, if, a dispute is connected with any matter specified in Second Schedule, it can be referred to a Labour Court and under clause (1) (d) if, it relates to Second or Third Schedule then CWP. No. 15179 of 2010 (O&M) -5- to a Tribunal for adjudication depending upon the number of employees effected by such dispute. The dispute sought to be raised by the petitioner falls within the purview of the Third Schedule. Third Schedule is reproduced hereunder:- “THE THIRD SCHEDULE. Matters within the jurisdiction of Industrial Tribunals. 1. Wages, including the period and mode of payment; 2. Compensatory and other allowances; 3. Hours of work and rest intervals; 4. Leave with wages and holidays; 5. Bonus, profit sharing, provident fund and gratuity; 6. Shift working otherwise than in accordance with standing orders; 7. Classification by grades; 8. Rules of discipline; 9. Rationalisation; 10. Retrenchment of workmen and closure of establishment and 11. Any other matter that may be prescribed.” The dispute in the present case relates to other allowances under Item No.2 and in so far declaring the Second Saturday as holiday, it falls within clause (4) of the Third Schedule. Thus, the dispute is referrable under Section 10 of the Act to the Industrial Tribunal or the Labour Court depending upon the number of employees effected by the dispute. Validity of settlement and its enforceability is also required to be gone into. Dispute is referable to appropriate forum under Section 10 of Industrial Disputes Act. In this view of the matter, it is not desirable to exercise the discretionary jurisdiction under Article 226. However, the petitioner-union is at liberty to seek remedy under the provisions of the Industrial Disputes Act, 1947. (PERMOD KOHLI) JUDGE 8.4.2011. lucky Whether to be Reported? Yes.