IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7949 of 1993 For Approval and Signature: HON'BLE MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MEGJIBHAI D MAKWANA Versus ASST LABOUR COMMISSIONER -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 7949 of 1993 MS KRINA THAKKAR for MR YOGESH S LAKHANI for Petitioner MR MUKESH R SHAH for Respondent No. 1 MR KM PATEL for Respondent No. 2-4 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE H.K.RATHOD Date of decision: 05/09/2003 ORAL JUDGEMENT Before adverting to the facts of the present facts, I would like to make reference the few observations made by the Punjab and Haryana High Court in the matter of JAGDISH CHAND V. LABOUR COMMISSIONER AND OTHERS reported in 1995 II LLJ 410. The observations are, therefore, reproduced as under: "Time has come when the people have started feeling that they have been let down by the two organs of the State and they look upon the Courts with a ray of hope. Common man's faith in the system of dispensation of justice still exists. However, failure of the Courts to undo injustice done to the citizen will shake the confidence of the people. The Courts will have to be more vigilant in the discharge of their duties to safeguard the legal and fundamental rights of the individual. Public Authorities particularly the administrative authorities have developed an attitude of total insensitiveness towards the needs of the people. This has naturally compelled the people to look upon Court for solace and redressal of injustice. No doubt, this has led to an immense increase in the volume of litigation but that should not threaten the Courts and there is no need to accept the specious argument or evolve methodologies to non suit those who are really aggrieved by State action or arbitrariness of public authorities. The Courts have to guard themselves against the allegations of being protector of haves in the society. Denial of relief to the poor and small man on the ground of availability of alternative remedy will not do any good to the society." Heard learned advocate Ms. Krina Thakkar for the petitioner, learned advocate Mr. Mukesh R Shah appearing on behalf of respondent No.1 and learned advocate Mr. K.M.Patel appearing on behalf of respondent Nos. 2, 3, and 4. 2. In the present petition, Rule has been issued by this court on 1.9.1993. Affidavit-in-reply has been filed by respondent Nos. 2 to 4 and Rejoinder is filed by the petitioner. 3. The brief facts of the present petition is that, petitioner was dismissed from service by the Bank, therefore, petitioner-workman has raised industrial dispute under Section 2(A) of the Industrial Disputes Act, 1947 ('the Act' for short) before the respondent No.1-Conciliation Officer. The said dispute was raised by letter dated 26.6.1989 which was received by the respondent No.1 on 10.8.1989. Ultimately, the Conciliation Officer has negotiated the dispute between the parties and in his intervention the industrial dispute raised by the petitioner has been settled and the settlement has been made in writing between the parties under Section 12 sub-clause (3) of the Act. On behalf of the respondent Nos. 2 to 4 one G.M.Shinde, Officer in staff department, Union Bank of India, Regional Office, Rajkot, who has been authorised representative of the management, has appeared and signed the settlement on 19.12.1991 and there are two witnesses; one Mr. M.H.Vania and other Mr. V.B.Marvadi whose signatures are in the settlement. Thereafter, settlement has been recorded by the respondent No.1-Conciliation Officer. The settlement has been produced by the petitioner as Annexure-A page 12. According to respondent No.1, after preliminary inquiry, in industrial dispute was found existed between the parties and hence it is admitted in conciliation under Section 12 (3) of the Act. Thereafter, the matter was finally taken in conciliation on 19.12.1991 when both the parties remained present through their authorised representative. After prolong discussion and suggestion made to the parties by the Conciliation Officer, both the parties reached to an understanding and agreed to sign a memorandum of settlement before the Conciliation Officer on the following terms of the settlement: (1) It is agreed by the management of Union Bank of India, Regional Office, Dr. Yagnik Road, 1st Floor, Radia Building, 1, Jagnath Plot, Rajkot that shri Meghjibhai Danabhai will be taken back in service of Union Bank of India as a Peon in the existing scale as and when he report for duty. (2) The period of termination from 7.1.1988 to till date he resume duty as a Peon will be treated as dies-non and will not be counted for any purpose. (3) The workmen Shri Meghjibhai Danabhai Makwana is agreeable to the above terms of settlement and agrees to withdraws his claim for back wages/intervening period from 7.1.1988 to till date he resuming the duty as a Peon. (4) It is agreed by the workmen Shri Meghjibhai Danabhai Makwana that this settlement fulfills entire demands raised before the Conciliation Officer, Adipur (Kutch) and he will not raise any other claim or any other relief on this account through any other agency/Court. Thereafter, the settlement which is required to be implemented on or before 18.3.1992 by the respondent Bank is not implemented. Therefore, by letter dated 14.7.1992 at page 15, the petitioner workman requested to the respondent No.1 to take or initiate a proceeding against the respondent Bank under Section 29 of the Act. Thereafter, the petitioner-workman has approached to the officer who has represented the Bank before the Conciliation Officer on 11.3.1992, to implement the settlement dated 19.12.1991 and issue reinstatement order in favour of the petitioner. The copy of the said letter is also sent to the respondent No.1. Then, on 10.4.1992, again the petitioner has written a letter to the Conciliation Officer with a request to take or initiate proceedings for implementation of the settlement against the respondent Bank. Thereafter, a common letter dated 27.4.1992 was written by the petitioner addressed to the Conciliation Officer and respondent Bank with a prayer to implement the settlement or to initiate the proceedings under Section 29 of the Act. The xerox copy of the acknowledgement of the registered AD addressed to the Conciliation Officer and the respondent Bank is annexed by the petitioner. Then on 26.2.1993 a request was made by the petitioner by letter addressed to the Conciliation Officer to initiate the proceedings of prosecution against the respondent Bank under the provisions of Section 29 of the Act. This being the case of the petitioner that inspite of settlement arrived at between the parties before the Conciliation Officer under Section 12(3) of the Act, having the binding effect under the statutory provisions, not implemented by the respondent Bank. 4. The reply given by the Bank is on merits, having two preliminary contentions raised in paragraphs 2 & 3. The first preliminary contention raised by the respondent Nos.2 to 4 Bank is that, so called settlement arrived at between the petitioner and the Bank does not deserve to be entertained as the petitioner has express and specific remedy available under the provisions of the Act, which, in the case pleaded in the petition appears to have been availed by the petitioner and therefore petition does not deserve to be entertained. The second contention in paragraph 3 involve investigation of disputed question of fact which cannot be undertaken in a proceeding under Article 226 of the Constitution of India. Without prejudice to these two preliminary contentions, the merits have been disclosed in paragraph 4/1 that respondent Bank has issued charge sheet on 7.10.1987 for commission of gross and serious misconduct of not handing over the book bearing receipts issued by the Gujarat Electricity Board; issuing receipts from the said book unauthorisedly and dishonestly to one Shri Rupa Puna and another Shri Nadhabhai and collecting amount as per receipts from the said parties and not depositing or returning the same to the Bank. Ultimately, on the basis of that allegation, after completion of departmental inquiry by order dated 22.9.1986, five increments have been stopped with cumulative effect and thereafter disciplinary authority passed an order of dismissal dated 7.1.1988 and, departmental appeal was also dismissed on 30.9.1988. Thereafter, the respondent Bank has raised the contention that looking to the merits and allegations levelled against the petitioner, it is not a case of reinstatement and, therefore, by letter dated 20.10.1989 necessary papers along with the reply were submitted by the Bank to the Conciliation Officer. The Bank has also raised the contention that Mr. Shinde, an officer in staff department, Regional Office, Rajkot was the only authorised representative to appear on behalf of the Bank and to submit the documents. The said officer has no authority, whatsoever, to negotiate or sign any settlement for an on behalf of the respondent Bank. At page 48, letter dated 17.12.1991, an authority letter has been produced by the respondent Bank. The Bank has also raised contention that Mr. Shinde was not conferred with any power to sign any settlement and, as such, the matter rests only with the Industrial Relation Department, Bombay. Thereafter, the explanation was called from Mr. Shinde by the Bank on 27.12.1991 and reply was given by Mr. Shinde on 28.12.1991. In reply, the contention was raised by Mr. Shinde that he was pressurised by the Conciliation Officer and it was not voluntary settlement and, by some coercive method signature of Mr. Shinde has been obtained and, therefore, he was not responsible for the same. Further contention raised by the respondent Bank is that Industrial Disputes Act (Central) Rules, 1957 are applicable to the respondent Bank and, as per Rule 58(2)(a) of the said Rules, a settlement on behalf of the employer has to be signed by the Manager or other Principal Officer of the Company, duly authorised in that behalf. In paragraph 4/5, the relevant rule has been incorporated by the Bank which suggest that 'in the case of employer, by the employer himself or by his authorised agent, or when the employer is an incorporated company or other body corporate by the agent, manager or other principal officer of the corporation'. The case of the Bank is that Mr. Shinde was only authorised to appear in conciliation proceedings and had no authority to sign any settlement. The further contention of the Bank is that the settlement is not legal and valid and it is not a settlement in the eye of law. Further averments made in the reply to show that Bank was not inclined to settle the matter looking to the allegations made against the petitioner and, therefore, by letter dated 1.11.1993 which is addressed to the respondent No.1-Conciliation Officer, wherein it is stated that the settlement was not signed by the authorised person, therefore, either to revoke the settlement or to refer the matter for reference to the Labour Court or the Tribunal. One fact has been brought to the notice of this Court by the Bank that, in pursuance to the settlement, a recovery application was filed under Section 33(C) (1) of the Act before the Labour Court which has been dismissed for non-prosecution on 30.10.1992 by the Labour Court, Bhavnagar. Therefore, according to the Bank, when the settlement is not legal and valid and same is not signed by an authorised person and petitioner has been dismissed from service for the serious misconduct relating to dishonesty, therefore, such settlement cannot be enforced against the respondent Bank. The Bank has also having the objection that this Court may not exercise powers for enforcing the settlement when settlement is in dispute by the Bank. Once the dispute has been raised or objection is raised by the Bank against the settlement, then it is burden upon the petitioner to point out how to satisfy this Court that settlement is legal and valid and for that this Court has to exercise the power and to inquire to the merits and disputed question of facts whether Mr. Shinde is an authorised officer or not. Therefore, it is beyond the scope of Article 226 of the Constitution of India and this court is not having jurisdiction to decide such disputed question of facts. All the relevant correspondences from the Conciliation Officer to Mr. Shinde with the Bank and order of dismissal are produced by the Bank along with reply. Letter dated 17.12.1991 at Page 48 signed by the Regional Manager of Regional Office at Rajkot addressed to the Conciliation Officer is quoted as under: We authorize Shri G.M.Shinde, Officer, Regional Office, Rajkot to appear in the aforesaid case as a Banks' representative. 5. It is necessary to note at this juncture that the petition is filed by the petitioner on 13.7.1993. This Court has issued notice on 9.8.1993 made it returnable on 25.8.1993, meaning thereby that notice issued by this Court must have to be reached prior to 25.8.1993 to the respondent Bank. In light of this, certain correspondence is related to some development in respect to the matter. It is necessary to note one important aspect with regard to the settlement dated 19.12.1991 that, in all, five occasions, request is made by the petitioner to the respondent Bank as well as respondent No.1-Conciliation Officer to implement the settlement but the settlement is not implemented by the Bank. Not a single reply is given by the Bank. If the Bank having the case to the effect that from inception the settlement is bad and they know that officer is not authorised, then they should have to immediately react by giving answer to the petitioner that settlement is invalid and not signed by the authorised person, therefore, we are not bound by such settlement, but no such reaction from the respondent Bank in respect to the same inspite of five letters received from the petitioner. It is also necessary to note that inspite of several letters of the petitioner workman no response is given by the Bank and the Bank has not addressed any letter prior to the receipt of notice from this Court to the respondent No.1-Conciliation Officer with a request to revoke the settlement or to refer the matter for adjudication. It was, the first time the efforts have been made after receiving the notice of this petition from the High Court by letter dated 1.11.1993 addressed to the respondent No.1-Conciliation Officer that settlement is not signed by the authorised person. There was some coercive measure adopted by the Conciliation Officer against Mr. Shinde which compelled him to sign the settlement and, therefore, to revoke the settlement or to refer the matter for adjudication. Therefore, the conduct of the respondent Bank is also having important role in present matter in light of various letters written by the petitioner to the Bank. Against that, a Rejoinder has been filed by the petitioner and a contention has been raised while giving reply that this contention is raised by the Bank after a period nine years and settlement which is arrived at between the parties is legal and valid and what action has been taken by the Bank after receiving the reply from Mr. Shinde on 28.12.1991. No details have been produced by the Bank in respect to the fact that what action has been taken by the Bank against Mr. Shinde. The petitioner in Rejoinder also submitted that in respect of contention of the bank that coercive measure has been adopted by the conciliation Officer and threat has been given to sign the settlement. Therefore, these are not bonafide contentions raised by the Bank but just to avoid responsibility of the settlement the contention has been raised by the respondent Bank. The petitioner has also gave reply that if there was some threat and coercive measure adopted by the respondent No.1 Conciliation Officer and there was no voluntary settlement arrived, then in respect to the allegations made against the respondent No.1 some proceedings must have to be initiated by the Bank or Mr. Shinde in respect to the allegations made against respondent No.1. No steps have been taken by the Bank or Mr. Shinde and, therefore, the petitioner has specifically made it clear that entire story has been cooked up by the respondent Bank. There was a genuine and valid settlement by an authorised representative and, therefore, same is required to be implemented by the respondent Bank as petitioner is out of job since 1988 till date. It is difficult for him to maintain family and, therefore, according to the petitioner, some directions may be issued to the respondents so that they will implement the settlement dated 19.12.1991 with all service benefits including the reinstatement with full back wages of interim period. 6. Learned advocate Mr. Mukesh R Shah appearing on behalf of respondent No.1 has submitted that because of the earthquake the papers in respect to the present petition which were lying in the office of the Conciliation Officer are misplaced and he is not having any material so he may file affidavit of the concerned Conciliation Officer. But he submitted that the story which has been developed by the Bank is just to ignore the responsibility of settlement which is an after thought and he also submitted that a correspondence between Mr. Shinde and the Bank calling the explanation from Shinde by letter dated 27.12.1991 and reply was given on 28.12.1991, then they remained silent up to a period of two years for approaching the Conciliation Officer which shows their conduct and petition was filed in July 1993 and has been cooked up after receiving the notice of this petition by the High Court by the Bank, therefore, these are not bonafide contentions raised by the Bank, these are all after thought and what happened to the memo issued to Mr. Shinde, no details have been given by the respondent Bank. Therefore, according to him the allegations which have been made against the respondent No.1 is false and after thought and therefore, same cannot be considered to decide the validity of the settlement. He also emphasized that if the Conciliation Officer who is a gazetted officer has made any efforts by adopting coercive measures to sign the settlement through the representative of the Bank then immediately they should have to approach by way of criminal complaint against the Conciliation Officer or to challenge such settlement immediately before the authority, but, no such efforts have been made till date and settlement in question is also not challenged by the respondent Bank till date in any forum either to file criminal complaint against the respondent No.1 or to challenge in higher forum, therefore, according to him the settlement which has been recorded by the Conciliation Officer under Section 12(3) of the Act is legal and valid and binding to the Bank and same is required to be fully implemented by the Bank without any delay on their side. 7. Learned advocate Mr. K.M.Patel appearing on behalf of respondent-Bank has submitted that settlement dated 19.12.1991 is not signed by an authorised representative of the Bank and the same is not legal and valid, therefore, same cannot be enforced in writ jurisdiction. This Court having equitable jurisdiction. If the settlement is implemented it amounts to miscarriage of justice looking to the misconduct committed and found to be proved against the present petitioner. Page 43 is the reply by the Bank before the Conciliation Officer on 28.10.1989. He also submitted that if the settlement is vitiated by fraud it will be again a subject matter of an industrial dispute and enforcing such settlement against the Bank which is not valid in light of the merits of the misconduct levelled against the petitioner. He relied upon the decision of the Apex Court in the case of BROOKE BOND INDIA LTD. V. THE WORKMEN, AIR 1981 SC 1660 to emphasize his submission that if the settlement is signed by unauthorised office bearer of the Union then such settlement held to be invalid by the Apex Court. Similar ideology will apply in the case of the respondent-Bank as an authorised officer has not signed the settlement, therefore, that settlement is not binding to the Bank. The Apex Court has observed as under: "Unless the office-bearers who signed the agreement were authorised by the executive committee of the Union to enter into a settlement or the constitution of the Union contained a provision that one or more of its members would be competent to settle a dispute with the management, no agreement between any office-bearer of the Union and the management can be called a settlement as defined in Section 2(p)". I have perused the aforesaid judgement and considering the ratio laid down by the Apex Court this judgement is not applicable to the facts of the present case simply on the ground that it relate to the settlement arrived under Section 2(p) of the Act. There is a vast difference between settlement under Section 2(p) and Section 12(3) of the Act. The settlement under Section 2(p) is binding to the signing person and not binding to others, meaning thereby, that settlement under Section 2(p) is binding to the parties alone and not binding to the other person whereas the effect of Settlement arrived under Section 12(3) of the Act is binding to all irrespective of parties, meaning thereby that effect of the settlement under Section 12(3) of the Act is like an award which bind to all existing workmen, employers or even in case of change of employer or change in the workmen it apply to both even in respect of the future workmen and employer also. Therefore, in light of legal effect of Section 12(3) of the Act comparison to Section 2(p) of the Act, the view taken by the Apex Court in aforesaid decision is not applicable to the facts of the present case and therefore, it is not helpful to the submissions made by Mr. K.M.Patel. 8. The second decision which has been relied upon by Mr. Patel is in the case of MAYURAKSHI COTTON MILLS AND OTHERS V. PANCHRA MAYURAKSHI COTTON MILLS EMPLOYEE'S UNION AND OTEHRS, AIR 2000 SC 1206 wherein he is emphasizing the question raised that whether the settlement was unfair, amounts to victimisation, in the petition. The High Court cannot decide or examine such question, better course is to raise industrial dispute and to refer for industrial adjudication. 9. I fail to understand the submissions made by Mr. Patel that on what basis he relied upon the above decisions and ultimately, what he wants to canvas or convey to this Court while relying upon the above decisions. For that ratio laid down by the Hon'ble Apex Court, there is no dispute. If the settlement is unfair or amounts to victimisation, if such question would have been raised in the petition filed by the petitioner before this Court then this Court would not have examined such question. But in such circumstances, this Court will relegate to the remedy to raise industrial dispute for challenging the validity of the settlement. Looking to the facts of this case, the petitioner workman has not challenged the settlement which is filed in the petition, on the contrary he also relied upon the settlement with a prayer to enforce it against the Bank. The challenge by the Bank is against the settlement, therefore, if the Bank having a real challenge or real grievance then they should have to raise industrial dispute under the machinery of the Industrial Disputes Act, 1947 and to get the reference for adjudication whether settlement is legal and valid or not. Under the