1 wp-3696-06.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3696 OF 2006 Navbharat Builders ] Survey No.287/3, Block C-301, ] Riviresa, Baner Road, Pune 411 045 ] .. Petitioner. V/s. Genubhau Devji Kale ] C/o. Adarsh Kes Katrenalaya ] At post Ghodegaon, at Ambegaon, ] District Pune ] .. Respondent. Mr. R.L. Nerlekar, for the Petitioner. Ms. Anjali S, Ranade, for the Respondent. CORAM : K.K.TATED, J. RESERVED ON : 20th April, 2011. PRONOUNCED ON : 25th April, 2011. JUDGMENT:- 1 Heard learned counsel for the parties. 2 By this Petition under Articles 226 and 227 of the Constitution of India, Petitioner/Original First Party challenges Judgment and Award dated 1st September, 2005 passed by the learned Presiding Officer, First Labour Court, Pune in Reference IDA No.417 of 2 wp-3696-06.sxw 1999, directing the Petitioner to reinstate the Respondent with continuity of service with effect from 14th June, 1997 and to pay 50% of back wages with effect from 14th June, 1997 within one month from the date of the order. 3 A few facts of the matter are as under:- (i) The Petitioner – Navbharat Builders is a partnership concern which execute the works such as construction of dams, cannels, roads etc., Government allotted contract to the Petitioner to construct dam on river Ghodnadi at Village Dimbe, Taluka Ambegaon, District Pune in 1978. For that purpose, the Petitioner appointed several workmen. All the workmen whose work was connected with the dam were given employment for the said purpose only. The work of the dam was nearly complete in August, 1993 to the extent of 97% and some minor work remained. Therefore, the purpose for which employees were employed was over and no work was left for the employees. The employees formed their Union known as Navbharat Builders Employees Union. The said Union filed two cases before the Industrial Court, Pune which were Complaint (ULP) No.164 of 1993 and Complaint (ULP) No.288 of 1993. Those complaints were related to not giving work to some of the employees. Ultimately, there was settlement with the Union under Section 2(P) and 18(1) of the 3 wp-3696-06.sxw Industrial Disputes Act, 1947 r/w Rule 62 (4) of the Bombay Rules, on 13th August, 1993. On the basis of the said settlement, the employees were to be paid compensation. According to the said settlement, the Respondent was paid Rs.2,700/- and Rs.5198.16 paise, vide vouchers. Pursuant to the said settlement by the Union, Respondent also tendered his resignation from Petitioner’s service. (ii) The Respondent filed complaint with the authority in respect of the termination of his service by the Petitioner. The Conciliation Officer referred matter to the Labour Court. The same was registered as Reference (IDA) No.417 of 1999. The Respondent filed his statement of claim dated 19th November, 1999, stating that the Petitioner restrained him from joining his work since 14th June, 1997. (iii) In the said reference, the Petitioner filed their Written Statement dated 11th January, 2002, opposing the reliefs claimed by the Respondent. The Petitioner in their Written Statement raised the complaint under items 1(a) & (b) of Schedule II and under item 3, 5, 9 & 10 of Schedule IV of the Maharashtra Recognition of trade Unions and Prevention of Unfair Practices Act, 1971. The Petitioner stated in their Written Statement that the Union of which the Respondent was member also filed Complaint (ULP) No.288 of 1993 and Complaint 4 wp-3696-06.sxw (ULP) No.164 of 1993. Those two complaints filed by the Union were settled out of the Court and pursuant to the said settlement, all the workers received their compensation. Pursuant to the said settlement with the Union, they paid compensation to the Respondent and obtained vouchers. The Respondent also tendered his resignation from the employment with the Petitioner. (iv) Thereafter, some 31 other employees filed references, claiming reinstatement and back wages. Those references were dismissed by Third Labour Court, Pune on 15th September, 2005, holding that for the same cause of action, second complaint is not maintainable, because, Navbharat Builders Employees Union already filed Complaint (ULP) No.288 of 1993 and 164 of 1993 and those complaints were settled out of the Court. (v) In that complaint, the Union agreed that the workmen who worked for more than 5 years, will be paid 21% of salary towards full and final settlement. The workmen who worked for more than 5 years but during intervention, they will be paid 17% of salary towards full and final settlement. The workmen who worked below five years of service, will be paid 13% of salary towards full and final settlement. The workmen who were given break, will be paid fifteen days payment and after their payments, they will tender resignation 5 wp-3696-06.sxw voluntarily. On the said order, all the employees of the Petitioner acted. (vi) After hearing both the sides, the Labour Court allowed the reference preferred by Respondent by its order dated 1st September, 2005, directing Petitioner to reinstate the Respondent with continuity of service with effect from 14th June, 1997 and to pay 50% of back wages. Being aggrieved by the said impugned order dated 1st September, 2005, Petitioner preferred present Writ Petition. 4 The learned counsel appearing on behalf of the Petitioner submits that the Labour Court grossly erred in not considering that Reference in respect of 31 other employees, who had raised the same claim, was duly rejected by another Labour Court by accepting the undisputed settlement dated 13th August, 1993 and resignations pursuant thereof. The Labour Court grossly erred in holding that the Petitioner failed to prove the settlement. He further submits that the Labour Court committed error in coming to the conclusion that resignation letters submitted by Respondent and payment of vouchers signed by Respondents are not admissible in evidence. He further submits that the Labour Court failed to appreciate that the second complaint for the same cause of action was not maintainable. The learned counsel appearing on behalf of the Petitioner submits that on 6 wp-3696-06.sxw the date of filing of the reference, the Petitioner was more than 65 years old and, therefore, there is no question of claiming reinstatement in service. Even as per the Model Standing Orders, the age of superannuation is fixed at 60 years. 5 The learned counsel appearing on behalf of the Petitioner submits that the Respondent at the time of filing of settlement of claim suppressed the material facts. Respondent failed to disclose the settlement dated 13th August, 1993 between Union and Petitioner. He also failed to disclose the two complaints bearing (ULP) Nos. 288 of 1993 and 164 of 1993, filed by the Union, in his statement of claim. Respondent further failed to disclose the receipt of payment and vouchers duly signed by him, accepting the compensation as per order passed by the Labour Court in complaint preferred by Union. The Respondent also suppressed that he signed on the resignation letter. Therefore, on the ground of suppression of material facts, the Labour Court should have dismissed the Respondent’s complaint. 6 He further submits that the Labour Court erred in coming to the conclusion that burden was on Petitioner to prove the settlement with the Union. On this submission, the learned counsel appearing on behalf of Petitioner submits that the judgment and award passed by the Labour Court is against justice, equality and good 7 wp-3696-06.sxw conscience and the same is liable to be set aside. 7 On the basis of submissions made by the learned counsel appearing on behalf of the Petitioner, following points arise for determination in the present Petition:- (i) Whether the complaint filed by Respondent was maintainable in law; (ii) Whether the Labour Court failed to consider the settlement between Petitioner and Union and whether the said settlement is binding on the Respondent; (iii) Whether the Respondent is entitled for any relief in his complaint. 8 It is to be noted here that in the present case, at the time of filing of statement of claim on 14th June, 1997, Respondent was of 65 years old. His birth date is 21st November, 1932. Therefore, in view of the Model Standing Orders, Respondent is not entitled for the relief for reinstatement. 9 Initially, the Union filed two complaints bearing nos.288 of 1993 and 164 of 1993 in Industrial Court, Pune. In those complaints, settlement was arrived at between the Petitioner and the Respondent Union on 13th August, 1993. Pursuant to the said settlement, Petitioner paid compensation to the Respondent and obtained signature of the Respondent on vouchers. Respondent also 8 wp-3696-06.sxw tendered his resignation dated 4th October, 1993. These facts were not disclosed by the Respondent in his complaint. Thus, the party approached the Court with unclean hand by suppressing relevant facts, such party is not entitled to any relief. The Petitioner rightly relied on Judgment in the matter of Dalip Singh v/s. State of Uttar Pradesh & Others , reported in (2010) 2 SCC – page 114. Para 2 of the said judgment reads under:- “Para – 2 - In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.” Therefore, the Labour Court ought to have dismissed the Respondent’s complaint on the ground of suppression of material fact. 10 In view of the provisions of MRTU Act, the second complaint for the same cause of action is not maintainable. In the present case, admittedly, all other workers have settled the matter and accepted the legal dues, knowing fully the order passed by the Industrial Court in the complaint filed by their Union. The Respondent accepted the compensation as per settlement and 9 wp-3696-06.sxw tendered his resignation. In his evidence, he accepted his signature but denied the contents of the same. Therefore, after obtaining the benefits, knowing fully the contents of the same, there is no question of filing the second complaint for the same cause of action. For the same cause of action, second complaint is not maintainable. 11 Once the settlement is accepted by Union, then the said settlement is binding on all the workers. Apex Court in the matter of Virudhachalam P. & Others v/s. Management of Lotus Mills and Another reported in 1998 (2) – LLJ, page -389 held that settlement reached during conciliation proceedings is binding, not only on members of signatory Union but also on workers whose Union have participated in proceedings refuse to sign the settlement. Paras 8 and 9 of the said judgment reads thus:- “Para – 8 - It has to be kept in view that the Act is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace. The principle of industrial democracy is the bedrock of the Act. The employer or a class of employers on the one hand and the accredited representatives of the workmen on the other are expected to resolve the industrial dispute amicably as far as possible by entering into the settlement outside the conciliation proceedings or if no settlement is reached and the dispute reaches conciliator even during conciliation proceedings. In all these negotiations based on collective bargaining individual workman necessarily recedes in background. The reins of bargaining on his behalf is handed over to the union representing such workman. The unions espouse the common cause on behalf of all their 10 wp-3696-06.sxw members. Consequently, settlement arrived at by them with management would bind at least their members and if such settlement is arrived at during conciliation proceedings, it would bind even non members. Thus, settlements are the live wires under the Act for ensuring industrial peace and prosperity. Section 10(2) of the Act highlights this position by providing that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court, Labour Court, Tribunal or National Tribunal, the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly. Individual workman comes into the picture only in connection with a limited class of industrial disputes as indicated by Section 2-A of the Act dealing with discharges, dismissals, retrenchments or otherwise termination of services of an individual workman. Save and except the aforesaid class of disputes, which an individual workman can raise, rest of the industrial disputes including disputes pertaining to illegal lock-out, lay-off and lay-off compensation have to be filtered through the process of collective bargaining and they are disputes of general nature or class disputes wherein individual workman by himself has no say. In this connection, it is profitable to keep in view a decision of three-Member Bench of this Court in the case of Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal, Patna & Ors. (1961-I-LLJ-504) wherein Das Gupta, J., speaking for this Court made the following pertinent observations on the scheme of the Act, at the time when Section 2-A was not on the statute book: “It is now well settled that a dispute between an individual workman and an employer cannot be an industrial dispute as defined in Section 2(k) of the Industrial Disputes Act unless it is taken up by a union of the workmen or by a considerable number of workmen. In Central Provinces Transport Service Ltd. v. Raghunath Gopal (1957-I-LLJ-27) Mr. Justice Venkataram Ayyar speaking for the Court pointed out after considering numerous decisions in this matter 11 wp-3696-06.sxw that the preponderance of judicial opinion was clearly in favour of the view that a dispute between an employer and a single employee cannot per se be an industrial dispute but it may become one if it is taken up by a union or a number of workmen. Notwithstanding that the language of Section 2(k) is wide enough to cover disputes between: an employer and a single employee observed the learned Judge: “The scheme of the Industrial Disputes Act does not appear to contemplate that the machinery provided therein should be set in motion to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of adjudication under the Act, when the same had not been taken up by the Union or a number of workmen. This view which has been re-affirmed by the Court in several later decisions recognizes the great importance in modern industrial life of collective bargaining between the workmen and the employers. It is well known how before the days of collective bargaining labour was at a great disadvantage in obtaining reasonable terms for contracts of service from his employer. As trade unions developed in the country and collective bargaining became the rule the employers found it necessary and convenient to deal with the representatives of workmen, instead of individual workman, not only for the making or modification of contracts but in the matter of taking disciplinary action against one or more workmen and as regards all other disputes. The necessary corollary to this is that the individual workman is at no stage a party to the industrial dispute independently of the union. The union or those workmen who have by their sponsoring turned the individual dispute into an industrial dispute, can therefor claim to have a say in the conduct of the proceedings before the Tribunal. 12 wp-3696-06.sxw It is not unreasonable to think that Section 3 of the Industrial Disputes Act recognizes this position, by providing that the workman who is a party to a dispute shall be entitled to be represented by an Officer of a registered trade union of which he is a member....” “Para – 9 - Consequently, the provisions contained in the first proviso to Section 25-C of the Act would also necessarily require an agreement to be entered into on behalf of the affected class of workmen by their accredited representatives being office bearers of their union. It is easy to visualize that when lay-off has been imposed by the management in an establishment or in any department thereof, the entire body of workmen working therein would be affected by lay-off. Therefore, their grievance in connection with lay-off compensation pertaining to the period of lay-off would not be necessarily an individual grievance but would be grievance of the class of workmen as a whole affected by such lay-off. If there is a binding settlement embodying an agreement on behalf of a class of workmen through their union in connection with lay-off compensation it would obviously be binding on all the members of the union and if such settlement based on agreement is arrived at during conciliation proceedings it would be binding to the entire class of workmen covered by the industrial dispute regarding lay-off compensation. The individual workman can raise his grievance under Section 25-C only if his statutory right of lay-off under Section 25-C is not hedged in by any binding effect of an agreement entered into by its own union with the management, whether in or outside conciliation proceedings or even by other unions that may arrive at such settlement during the course of conciliation proceedings. Then only individual workman can have full play under Section 25-C for vindicating his right of lay-off compensation.” 13 wp-3696-06.sxw 12 Therefore, the Labour Court committed error in coming to the conclusion that the complaint filed by Respondent is maintainable and the settlement arrived by Union is not binding on the Respondent. Therefore, the complaint filed by the Respondent was not maintainable in law. 13 The learned counsel appearing on behalf of the Petitioner submits that the complaint filed by the Respondent is not maintainable as the same was filed after attaining age of superannuation. He submits that the Respondent had crossed the age of superannuation in 1992 itself and the complaint was filed in 1999. He further submits that pursuant to the settlement with the Union representing him along with the several other employees, he tendered resignation and accepted his dues in 1993. Thereafter, he was in reemployment. In 1997, he raised the false documents of termination suppressing the settlement and resignation as well as acceptance of dues in 1993 itself. He submits that in view of judgment in the matter of Dalip Singh v/s. State of Uttar Pradesh & Others, reported in (2010) 2 SCC page 114, as he suppressed material facts at the time of filing Petition in the Court, he was not entitled to any relief. Paras 1 & 2 of the said judgment reads as under:- 14 wp-3696-06.sxw “Para -1 - For many centuries Indian Society cherished two basis values of life i.e. “satya’ (truth) and “ahimsa” (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.” “Para -2- In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.” 14 The next submission made by learned counsel appearing on behalf of the Petitioner is that the impugned award passed by the labour court is contrary to the award passed in respect of 31 other employees who had raised the same claim was duly rejected by another labour court by accepting the undisputed settlement and resignation pursuant thereto. 15 wp-3696-06.sxw 15 The third submission made on behalf of learned counsel appearing on behalf of Petitioner is that the Union of which the Respondent was member, settled the matter with the Petitioner. Pursuant to the said settlement, they made entire payment to the Respondent. Respondent tendered his resignation and also signed vouchers. He submits that once the settlement takes place with the Union,then workman in his individual capacity cannot challenge and/or seek any further reliefs in the said matter. 16 He further submits that the Court below erred in coming to the conclusion that as the settlement was not proved by the Petitioner. He submits that it was not necessary for him to prove the same by leading any evidence. In support of his contentions, he relied on the judgment in the matter of Viveka Nand Sethi v/s. Chairman, J & K Bank Ltd., & Others, reported in 2005, 5 SCC – page 337. In that case, the Apex Court held that the settlement being exhibited document should have been considered in its proper prospective by the Tribunal. Paras 12, 13 and 14 of that authorities reads as under:- “Para – 12 – Before the Industrial Tribunal, the workman did not deny or dispute the existence of the bipartite settlement. He merely raised a plea that the same was not applicable. The plea of the Bank, on the other hand, was that the stipulations contained in the bipartite settlement were attracted if the employer arrives at a satisfaction that there were sufficient grounds for it to arrive at a 16 wp-3696-06.sxw conclusion that the employee was no longer interested to continue in the service.” “Para – 13 -The fact that there exists a bipartite settlement entered into by and between the banks and their workmen is not in dispute. The workman was all along aware about the said legal position inasmuch as, at all stages viz. issuance of notices and memorandums, passing of the order of termination, the said settlement had been referred to.” “Para –14- What fell for consideration before the Industrial Tribunal was the interpretation and/or applicability of the said settlement. The Industrial Tribunal committed an error of record insofar as it proceeded on the basis that the said settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by the Industrial Tribunal. Clause 2 of the said settlement is a complete code by itself. It lays down a complete machinery as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. A bare perusal of the said settlement clearly shows that it is for the employee concerned to submit a proper application for leave. It is not in dispute that after the period of leave came to an end in June, 1983, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum dated 2.11.1983 was issued and he was asked to join his duties. It is furthermore not in dispute that despite receipt of the said memorandum, the workman did not join duties pursuant whereto he was served with a notice to show cause dated 31.12.1983. He was required to