1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 416 OF 2010 1 Siemens Ltd. Thane Belapur Road, Kalwe, Thane(W)-400601 & having its Office at: 130, Pandurang Budhakar Marg, Worli, Mumbai 400 018. .... Petitioner vs 1 Their Employees represented by Siemens Workers’ Union, Thane (E) 400 603 .... Respondent No.1 2 Mr.Jagdish P. Limaye, Member, Industrial Court, Checknaka,Thane. ... Respondent no.2. Mr. P. K. Rele, Senior Counsel i/by Mr. P.N. Anaokar for the petitioner. Mr. Ravindran Nair for respondent no.1. CORAM: ANOOP V. MOHTA, J. DATE : 16th April, 2010 ORAL JUDGMENT: 1 Rule, made returnable forthwith. Heard finally. 2 The petitioner/employer has challenged the impugned order dated 26.10.2009, whereby rejected the petitioner's application to decide the preliminary issue. 3 Admittedly, the petitioner moved a preliminary objection on 19.11.2007 which was resisted by the respondent by reply dated 17.04.2009. The Industrial Tribunal has passed the order on 26.10.2009 by holding that the contents of the 2 Settlement dated 03.04.2006 and justification for Charter of Demand on 08.06.2006 and the documents on record, it is difficult to accept the case that there exists no dispute and thereby rejected the preliminary objection and directed to proceed with the main matter on all issues. 4 The importance of any Settlement just cannot be overlooked. There is no dispute that there was Settlement with the Employees Union all over India including the workers at Kalwe Factory. The Company along with Union had arrived at number of Settlements since long including Settlement dated 26.05.1998, 10.07.2001, 04.09.2003 and lastly on 03.04.2006. All these Settlements have been based upon the discussions and negotiations between the petitioner and the Employees Union. The benefits of the said settlements have been accepted by majority of the Employees all over India. The submission is that only 4 to 5 members have not accepted the benefits under the Settlement though the same was offered to them. The parties have acted upon the said Settlement since then as the same was fair and reasonable. In this background, the challenge by the present respondent no.1 claiming to be a recognised Union of the staff and, therefore, rightly objected, as there exists no industrial dispute which is a must for any Reference. If there exists no industrial dispute between the company and the staff in view of the above Settlements, there is no question of proceeding further on the basis of the objection so raised to such Settlement at the instance of respondent no.1, whose recognition itself is under challenge. 5 I am not deciding in this facet writ petition this preliminary objection so raised, in view of the above, which in the present facts and circumstances of the case, goes to the root of the mater and, therefore, it is desirable that the same 3 should be decided at the earliest point of time. The merit of objection, even if any, need not be taken note of unless or until the preliminary objection so raised is decided. There is no point in keeping such Reference pending for long. It disturbs the basic purpose and object of Settlement in question by the persons who were not parties to the Settlement. 6 The point is, any objection, even if so raised, and if Court is in a position to come to the conclusion that there exists no industrial dispute in view of the above Settlement and if that issue of settled at the earliest point of time, in my view that approach should be adopted even in such industrial matters. 7 The learned counsel for respondent no.1 has strongly relied on Sarabhai M. Chemicals Ltd. v. Rajnikant V. Shah, 2008 II CLR 472. That was not the case of Settlement. The facts and circumstances are totally distinct and distinguishable. If there is no industrial dispute pending or existence and if that finding is given by the Industrial Court at earliest point of time, then there is no question of going into the merits of the matter at least on that issue. 8 The reliance is also made on Jhagrakhan Collieries (P) Limited vs. G.C.Agarwal, Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court, Jabalpur & ors., 1975 L.L.J. (S.C.) 163, and thereby submitted that the workmen who are not parties to the Settlements can challenge any settlement though arrived at by the employer with the Union/Workers. I am not deciding whether they are entitled or not. The Court will consider the same at appropriate stage. The point is whether the preliminary issue so raised need to be decided at the earliest point of time or not. In the present case, in view of above facts, in a matter of Settlement like this, in my view, it is desirable to have such 4 issue framed and decided at the earliest. Otherwise, in such case of Settlement, if objections are not decided the trial proceeds or if any Reference is made and kept pending for long for want of evidence, it will frustrate the whole object and purpose of such Settlement. The early disposal of such preliminary objection will serve the purpose of settlement and will create peace and workable atmosphere for running the Industry. It is apt to note that “a memorandum of settlement must be read in the context in which the same was made. [ (2006) 9 SCC 478, CEAT Ltd. v. Murphy India Employees Union ]. 9 The learned counsel for the petitioner in support of his submission has also relied on The Workmen of M/s. Hindustan Lever Ltd. & ors. v. The Management of M/s. Hindustan Lever Ltd., 1984 (I) LLJ page 388 (SC) to frame such preliminary issue as it goes to the root of the matter. The same modality will be in the interest of all the parties. 10 The Apex Court in Hussan Mithu Mhasvadkar vs. Bombay Iron & Steel Labour Board & anr., (2001) 7 SCC 394 has also considered that the issue whether a particular person is workman or whether particular factory is industry, the Court must consider at the earliest and adjudicate the same including the status of the respective parties. The same principle also applies here as it is necessary to adjudicate at the earliest whether there exists industrial dispute or not and for that it is not necessary to go into other issues as ordered to proceed by the trial Court. 11 In Nedungadi Bank Ltd. v. K.P. Madhavankutty & ors., 2000 I CLR 671, the Apex Court while dealing with Section 10 of the Industrial Disputes Act, 1947 and considering the other Supreme Court judgments has specifically observed as 5 under : “... The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. Bank was justified in thus moving the High Court seeking an order to quash the reference in question.” 12 In my view, the preliminary objection so raised needs to be adjudicated first by giving full opportunity to both the parties. The impugned order dated 26.10.2009 is accordingly quashed and set aside. The Application filed by the petitioner is accordingly allowed so far as deciding the preliminary issues so raised. The Industrial Court, Thane is therefore to proceed to pass orders in accordance with law. 13 The Petition is accordingly allowed to the above extent only. 14 Rule is made absolute in the above terms only. No costs. (ANOOP V. MOHTA, J.)