IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.03.2002 CORAM THE HONOURABLE MR. JUSTICE K.P.SIVASUBRAMANIAM WRIT PETITION Nos.4884 to 4887 of 2002 and WRIT PETITION Nos.5651 of 2002 and W.P.M.P.Nos.6906 to 6909 and 7853 of 2002 Anaimalai National Estate Workers Union represented by its General Secretary, Valparai. Petitioner in W.P.No.4884 of 2002 Anaimalai Ambedkhar Thotta Makkal Sangam represented by its General Secretary, Valparai. Petitioner in W.P.No.4885 of 2002 Anaimalai Dravida Thozhilalar Munnetra Sangam (LPF), Valparai, represented by its General Secretary. Petitioner in W.P.No.4886 of 2002 Tamil Nadu Plantation Worker's Union, represented by its General Secretary, Coonoor. Petitioner in W.P.No.4887 of 2002 Edayadeivam M.G.R.Thotta Thozhilalar Sangam, represented by its President, Valparai. Petitioner in W.P.No.5651 of 2002 /versus/ 1.The Planter's Association of Tamil Nadu, Coimbatore. 2.Stanmore Estate, represented by its Manager, Valparai. 3.Injiparai Estate represented by its Manager, Valparai. 4.Siricundra Estate, represented by its Manager, (M/s.Hindustan Levers Ltd.), Valparai. 5.Panchamalai Estate, represented by its Manager, Valparai. 6.Valparai Estate, represented by its Manager, Valparai. 7.Veloni Estate, represented by its Manager, Valparai 8.Urilikal Estate, represented by its Manager, M/s.Tata Tea Ltd. Urilikal Estate Post, Valparai. 9.Pannimedu Estate, represented by its Manager, M/s.Tata Tea Ltd., Pannimedu Estate Post, Valparai. 10.Sholayar Estate, represented by its Manager, Sholayar Estate (P.O.), Valparai. 11.Kallar Estate, represented by its Manager, M/s.Jay Shree Tea and Industries Ltd., Sholayar Estate (P.O.) 12.Water falls Estate-East, represented by its Manager, Water falls Estate (PO). 13.Water falls Estate-West, Water falls Estate (PO). 14.Iyerpadi Estate, represented by its Manager, (M/s.Parry Agro Industries Ltd.), Iyerpadi Estate (PO). 15.Paralai Estate, represented by its Manager, (M/s.Parry Agro Industries Ltd.), Iyerpadi Estate (PO). 16.Murugally Estate, represented by its Manager, (M/s.Parry Agro Industries Ltd.), Murugally Bazaar (PO). 17.Sheikal Mudi Estate, represented by its Manager, (M/s.Parry Agro Industries Ltd.), Murugally Bazaar (PO). 18.Mukkottumudi Estate, by its Group Manager, Mudis Group, M/s.Bombay Burmah Trading Corporation Ltd., Mudis Post. 19.Thonimudi Estate, by its Group Manager, Mudis Group, M/s.Bombay Burmah Trading Corpn. Ltd., Mudis Post. 20.Thayamudi Estate, by its Group Manager, Mudis Group, M/s.Bombay Burmah Trading Corpn. Ltd., Mudis Post. 21.Gajamudi Estate, by its Group Manager, Mudis Group, M/s.Bombay Burmah Trading Corpn. Ltd., Mudis Post. 22.Anamudi Estate, by its Group Manager, Mudis Group, M/s.Bombay Burmah Trading Corpn. Ltd., Mudis Post. 23.Karamalai Estate, represented by its Manager, (M/s.Periya Karamalai Tea & Produce Company Ltd.), Karamalai Bazaar Post, Valparai. 24.Akamalai Estate, represented by its Manager, (M/s.Periya Karamalai Tea & Produce Company Ltd.), Karamalai Bazaar Post, Valparai. 25.Vellamalai Estate, represented by its Manager, (M/s.Periya Karamalai Tea & Produce Company Ltd.), Karamalai Bazaar Post, Valparai. 26.Nadumalai Estate, represented by its Manager, (M/s.Periya Karamalai Tea & Produce Company Ltd.), Karamalai Bazaar Post, Valparai. 27.Waverly Estate, represented by its General Manager, NEPC Tea Garden, Water falls Estate Post, Valparai. 28.Mount Stuart Tea Estate, represented by its General Manager, NEPC Tea Garden, Water falls Estate, Valparai. 29.Commissioner of Labour, Teynampet, Chennai 600 006. Respondents in all cases. 30.PASI Tea Research Foundation, represented by its Director, Nirar Dam BPO, Valparai, Coimbatore District. R.29 in WP.4885/2002 For petitioners in all cases : Mr.K.Chandru, Senior Counsel, for Mr.D.Hariparanthaman in WP.Nos.4884 to 4887 of 2002 Mr.S.Saravanan, in WP.No.5651 of 2002 For 1st respondent : Mr.Vijay Narayan For 2nd respondent : Mr.A.L.Somayaji, Senior Counsel for Mr.T.S.Gopalan For 12th respondent : Mr.R.T.Doraisami : ORDER These writ petitions have been filed by the different Trade Unions registered under the Trade Unions Act,1926, representing the Plantation Workmen employed in the various Estates in Valparai, Anaimalai areas in Coimbatore District. According to them there are about 24,000 permanent workmen and about 26,000 temporary workmen and daily rated workmen employed in the Estate/respondents 2 to 28. Considering that identical issues are raised in all the above writ petitions, it is convenient to refer to the facts stated in W.P.No.4884 of 2002. 2.According to the petitioner, the Union has been entering into various settlements from time to time right from 1962 separately for each category of workmen regarding the wages and working conditions. The last of such settlement was entered into between Unions and the first respondent under Section 18(1) of the Industrial Disputes Act ( hereinafter called "the Act") on 10.7.1996`. Though the period of settlement was for three years, ending on 31.12.1998, the terms of the settlements stand automatically extended even after the said period in terms of Section 19(2) of the Act. Regarding wages of Supervisory staff and the skilled workers also, similar settlement was arrived at on 2.5.2000 for the period commencing from 1.9.1999 and for the general category on 12/13.1.2000 for the period commencing from 1.1.1999 to 31.12.2001. 3.In terms of such settlement the employees have also been receiving apart from wages, Dearness Allowance, incentive etc. On completion of the period of settlement, they had demanded revision of the wages considering the price of essential commodities. But to their surprise and shock the Planters Association of Tamil Nadu, the first respondent herein (P.A.T.) issued three individual notices dated 24.10.2001 informing their intention to terminate the settlement dated 10.7.199 6, 2.5.2000 and 12/13.1.2000 with effect from 31.12.2001. 4.On receipt of such notices almost all the Unions wrote letters objecting to the proposals and requested withdrawal of the proposals. Instead of holding talks and arriving at a mutual settlement, respondents 2 to 28 sent individuals notices on 30.11.2001 and 8.12.2001 to all Unions under Section 9-A of the Act seeking to withdraw, alter, modify the existing benefits flowing from the said settlement. The changes thus contemplated not only result in reduction of wages and incentives, but also changes in the work pattern resulting in increased work load. A conciliation notice dated 7.12.2001 was received from the Commissioner of Labour, 29th respondent. The Union and the first respondent Association took part in the Conciliation proceedings and the 29th respondent advised respondents 2 to 28 not to give the effect to the proposed changes and also both parties to have bilateral negotiations to resolve issues amicably. As on the date of the writ petition, nine rounds of talks were held, but the first respondent was adamant in implementing the proposed change in working conditions. Respondents 2 to 28 have also notified that the wages and other benefits for the month of January, 2002 would be paid only in accordance with the changes proposed in the notice issued under Section 9-A of the Act. The disbursement of wages will be made with effect from 7th or 10th of every month depending on the strength of the workers in each of the estate. According to the petitioner Union, as per the proposed change each workmen will lose about 30 to 40 per cent. Consequently, the workers refused to receive wages for the month of January, 2002. It is further stated that the settlement cannot come to an end without following the procedure under Section 19(2) of the Act. It was also not open to the management to change the terms and conditions of service during the pendency of the dispute. 5.In their counter, the Planters Association have not disputed the details relating to the execution of the settlement as arrived at between the parties as pleaded by the petitioners; but would state that the agreements were terminated by issuing notice under Section 19(2) of the Act with effect from 31.12.2001. Thereafter, individual notices have been issued by each of the Estate separately under Section 9-A of the Act and not by the Association. It is also pleaded that the writ petition is not maintainable since the individual Estate or the Planters Association is not a State or Instrumentality of the State in terms of Article 12 of the Constitution of India and hence no mandamus can be issued against respondents 1 to 28. As a result of the financial crisis faced by the Tea industry and the Plantation, the proposed revision of wages was imminent and necessary and in fact a High Level Meeting of the representatives of the employers and the Union was convened and also a meeting took place with the Hon'ble Minister for Labour and pursuant to the said meeting they had requested the Joint Commissioner of Labour by their letter dated 29.11.2001 to convene a High Level meeting. Notice under Section 9-A of the Act was given between 30.11.2001 and 8.12.2001. Notice of Conciliation was given by the Joint Commissioner on 7.12.200 1. Even prior to 1.1.2002 (when the changes in the condition of service were to take effect) on 18.12.2001 itself the Commissioner directed both parties to hold direct talks between themselves. Such talks did commence on 1.1.2002 and continued on several dates. Therefore, there was no Conciliation proceeding pending on 1.2.2002 or subsequently. It is further stated that the Association has only a representative status and hence the intimation given by the Labour Commissioner to the Association cannot be treated as notice to individual employers. The parties are still carrying on by-partite negotiations in which the petitioner's Union are also taking part. There is no contravention of Section 33 of the Act in any manner. Even assuming that a Conciliation proceeding was pending as alleged by the petitioners and that there was any violation of Section 33 of the Act, the petitioners should have filed a complaint under Section 33-A of the Act and the Conciliation Officer should have held discussions in an attempt to arrive at an interim arrangement. Section 33-A of the Act itself provides an alternative and efficacious remedy and hence, there was no justification to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. 6.It is further stated that earlier there was a direct industrywise negotiation covering all the areas and because of the delay, the Unions operating in Nilgiris District, has expressed desire to arrive at a settlement in respect of their areas, covering plantations in the Taluks of Udhagamandalam, Kotagiri, Coonoor. A settlement was arrived at agreeing on fixing wages at Rs.70/- per day plus Attendance bonus of Rs.2/- per day and thus in respect of a major Plantation area, settlement had been arrived at. The settlement was to remain in operation for a period of three years. It is further stated that the settlement covers more than 12,000 workmen. In fact, the Unions affiliated to the Central Federations to which some of the present petitioner's Union are affiliated, are also signatories to the said settlement. 7.In the counter, further details have also been given which according to the first respondent, would provide more than adequate reasons to justify the downward revision of wages as contemplated. The circumstances thus expressed include various factors such as Liberalisation policy of Government of India, Trade policy allegedly dictated by the World Trade Organisation (W.T.O.), general recession in the industries etc. Considering the issues which are relevant for the disposal of these writ petitions, there is no need to go into those details. 8.Separate counter affidavits have been filed by the various Estates (i) 12th respondent (ii) Respondents 14 to 17 (iii) Respondents 23 to 26. The defence taken therein are almost similar to that of the counter filed by the Association. In addition, they have also pleaded reasons for justifying the downward revision of the wages. 9.Mr.K.Chandru, learned Senior Counsel for the petitioners submits that the proposed revision affects not only the service conditions, but also the very living conditions of the labour force in the area. Cut in the wages and allowances were so drastic that it was not possible for the petitioners/workers to survive. There was no justification in comparing the workers in Nilgiris area as most of them are natives of the said area while the workers in Anaimalai and Valparai areas are migrants from other Districts. He would also state that if the very same Unions had agreed for the settlement in the Nilgiris area and they are not agreeing for Valparai area, it cannot be due to any ulterior motive. The objections are based only due to peculiar conditions of one area and therefore, it was neither proper for comparing one area with the other nor to contend that the petitioner's Unions were unnecessarily and deliberately refusing to arrive at a settlement. 10.It is further contended that the existing service conditions as covered by the settlement can be altered only by following procedure under Section 19(2) of the Act. It was the employer who had given notice under Section 9-A of the Act and had also approached the authorities under the Act and had commenced the Conciliation proceedings. That being so, it was not open for the respondents to violate the provisions of Section 33(1) of the Act and seek to alter the conditions of service to the disadvantage of the employees during the pendency of the Conciliation proceedings. Such conduct not only amounted to non-compliance of the statutory provisions, but also attracted penal provisions. Therefore, respondents cannot be permitted to raise technical objections such as alternative remedy or the maintainability of a writ of mandamus. 11.Mr.A.L.Somayaji, learned Senior Counsel for some of the employers contends that the writ petition itself is not maintainable as against a Private Company. It is further stated that there was no Conciliation Proceeding pending as on date, in view of the fact that the Commissioner had directed bipartite talks among the parties and talks were taking place. Hence, Conciliation proceedings have come to an end. The Conciliation Proceeding was no more subsisting. The roll of the Conciliation Officer was only to bring about a settlement and he does not decide rights of parties. He would further submit that even assuming that Conciliation was pending, the Unions had the alternative remedy of invoking Section 33-A of the Act to implement the existing service conditions or to invoke Section 33(c) of the Act. The alleged violation of Section 33(1) cannot justify invoking extraordinary jurisdiction of this Court. Facts and figures were also furnished by learned Senior Counsel to support the contention that the Plantation industry was facing a crisis and it was no more possible to comply with the old wages. I would be subsequently dealing with the rulings cited by learned Senior Counsel in the context of the above submissions. 12.Mr.Vijay Narayan learned counsel appearing for the PAT contended that it was within the rights of the management to give effect to the changes contemplated under the notice under Section 9-A of the Act after notice is given. The effect of the provision under Section 33(1) of the Act has to be considered in the light of the other provisions of the Act. The duties of the Conciliation Officer in the context of public utility services were dealt with under Section 12 of the Act. His duties in the context of other institutions cannot also vary and his duty was only to bring about a settlement if possible and he was not deciding the rights of parties. Learned counsel also very strenuously pleaded that the very survival of the plantations was becoming impossible and in fact, the labour wing were fully aware of the position and that is the reason why the Union in other areas had come to amicable settlement agreeing for bringing down the wage structure. This is not an industry which can be closed down or be subject to lay-off, as in the case of other types of industries. Therefore, the labour force should realise that the survival of both would depend upon each other and being alive to the realities of the financial constraints on the management. He would also submit that notice of Conciliation was not given to the employers individually and hence, cannot be construed as a Conciliation proceeding within the meaning of Section 33 of the Act. The notice given to the Association cannot be construed as notice to the individual employer. On the facts of the case, the Conciliation Proceedings cannot be said to have commenced. He would further submit that even in a case where no notice under Section 9-A of the Act was given, it is not in every case, the Court would be inclined to interfere. There is no public duty cast upon the employer. The issues are purely contractual. It is further stated that the negotiations were proceeding in the right direction and if there should be interruption by the Court now at this stage, it might result in scuttling an amicable settlement. 13.Mr.R.T.Doraisamy, appearing for the 12th respondent contended that the employees had acted bona fide by initiating proceedings for Conciliation and genuine attempts were being made to find out proper solution. It is only a minority section of the employees who were opposing the settlement. 14.In reply, Mr.K.Chandru, learned Senior Counsel, contended that both the management and the labour were not at the same bargaining level. The very survival of the workers was at stakes. If certain concessions have been announced in the present Central Budget, it was due to joint-lobbying with the Government which shows that the labour was very much interested in the survival of the Plantation. The management was aiming only at keeping up its proportion of profits by reducing the salary unmindful of the consequential adverse effects which cannot be borne by the labour. This was a labour intensive industry which cannot contemplate reduction of the work force and that is the reason why the employers have thought it fit to cut down the wages unmindful of its grave effects on the workers. As regards the issue as to whether Conciliation Proceedings could be stated to be pending or not, learned Senior Counsel referred to the pleadings of the respondents themselves to support his contention that the proceeding was very much pending. 15.I have considered the submissions of both sides and given my utmost consideration. The points for determination can be broadly formulated as follows:- (a) Maintainability of the writ petition; (b) Alternative remedy and monstrosity of the issue; (c) Whether as on date the Conciliation Proceeding is pending? (d) Whether the notice given to the Association is sufficient to bind the individual employer/Estate. 16.MAINTAINABILITY: The contention that a writ of mandamus cannot be issued as against a Private Company especially where no public duty is involved in the discharge of duties, is mainly based on the judgment of the Supreme Court in V.S.T.INDUSTRIES LTD. v. V.S.T. INDUSTRIS WORKERS' UNION (200 1 (1) S.C.C., 298). Much reliance is placed on the observations contained in paragraph No.8 of the judgement which is as follows: "The High Court has relied very strongly on the decision of a learned single Judge in T.GATTAIAH CASE where in it was stated that a writ may lie under Article 226 of the Constitution against a company incorporated under the Companies Act, 1956 as it is permissible to issue a writ against any person. Prima facie, therefore, a private person or an incorporated company cannot be taken out of the sweep and contemplation of Article 226 of the Constitution. That decision does not take note of the fact as to the nature of the functions that a person or an incorporated company should be performing to attract judicial review under Article 26 of the Constitution. In ANANDI MUKTA CASE this Court examined the various aspects and the distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty that Article 226 of the Constitution can be invoked. In the present case, the appellant is engaged in the manufacture and sale of cigarettes. Manufacture and sale of cigarettes will not involve any public function. Incidental to that activity there is an obligation under Section 46 of the Act to set up a canteen when the establishment has more than 250 workmen. That means, it is a condition of service in relation to a workman providing better facilities to workmen to discharge their duties properly and maintain their own health or welfare. In other words, it is only a labour welfare device for the benefit of its workforce unlike a provision where the Pollution Control Act makes it obligatory even on a private company not to discharge certain effluents. In such cases public duty is owed to the public in general and not specifically to any person or group of persons. Further the damage that would be caused in not observing them is immense. If merely, what can be considered a part of the conditions of service of a workman is violated then we do not think there is any justification to hold that such activity will amount to public duty. Thus, we are of the view that the High Court fell into error that the appellant is amenable to writ jurisdiction." 17.Mr.A.L.Somayaji, also relies on few other judgments in support of the same contentions. 18.The statement of law thus expressed by the Supreme Court in V. S.T.INDUSTRIES case, supra, had already been pronounced by the Supreme Court in PRAGA TOOLS CORPORATION v. IMANUAL (1969 (2) L.L.J., 749). 19.In that case also, the Supreme Court observed that mandamus would lie to secure the performance of a statutory duty and as such the condition precedent for the issue of a mandamus is that there should be legal right in the petitioner and also could be issued to a person or to a Corporation to do a particular thing which is in the nature of public duty. Therefore, we have to see whether the principles stated in PRAGA TOOLS case, and VST INDUSTRIES case, supra, would nonsuit the petitioners in seeking for direction to the respondents to comply with their statutory duties and obligations. 20.The power of the writ Court to issue the prerogative writs is well known. There is no controversy over the position that it is an extra-ordinary and plenary power to be exercised by the Supreme Court and the High Courts and could be issued to any person inclusive of a private individual. Whatever restrictions or embargo which are placed against the exercise of such power are only a series of self imposed restrictions which the Courts have imposed upon themselves considering that it is a discretionary remedy. Normally writs will not be issued in situations such as availability of alternative remedy, parties approaching the Court very belatedly, notices which are in the nature of show-cause notices, Executive functions which are administrative and discretionary in nature and based on the subjective satisfaction of the authorities etc. Likewise, for issuing writs positively, notwithstanding any of the above mentioned self imposed restrictions, writs can be issued for securing ends of justice, the Executive Authority acting without application of mind or without jurisdiction and deliberately violating statutory obligations and last but not the least when the action of respondents may be described as "monstrous". What is to be characterised as monstrous is no doubt to be left to the judicial conscience in the exercise of its discretion in the facts and circumstances of each case. 21.The question whether a writ can be issued to a private person and a Private Company is positively answered in the above two judgments themselves relied on by the employers namely, in PRAGA TOOLS's case and VST.INDUSTRIES case, supra. It is made clear that writ can be issued to a private individual or a Corporate body or Company and such category of persons need not be discharging any public or statutory duty. Distinction is made only on the basis as to whether the impugned action of the respondents is in relation to any public duty or statutory duty. In VST.INDUSTRIES case, supra, in spite of the Supreme Court having found that the Company was not involved in any public duty, at the same time made it clear that if the same Company was violating the provisions of the Pollution control Act, a writ can be issued. Therefore, there is no question of any blind or universal embargo against issuing a writ against a private individual or a Company. If they violate statutory or public duties or indulge in monstrous activities, writ can be issued. 22.While