Case: Hill Son &amp; Dinshaw Limited Vs. P.G. Pednekar &amp; Others

towards resolving the industrial dispute which may be lingering between the employers and their workmen represented by their unions but even if at that stage such settlement does not take place and the industrial dispute gets referred for adjudication, even pending such disputes, the parties can arrive at amicable settlement which may be binding the parties to the settlement unlike settlement arrived at during conciliation proceedings which may be binding not only on the parties to the settlement but even to the entire labour force working in the concerned organisation even though they may not be members of the union which might have entered into settlement during conciliation proceedings". 10.In the case of Balmer Lawrie Workers Union and Anr. vs. Balmer Lawrie & Co.Ltd. and Ors. 1985 I CLR 103, clause 17 of the settlement entered into between the management and the recognised union came to be challenged and as per the said clause the company was to collect, from each workman, an amount equivalent to 15 per cent of the gross arrears payable to each employee under the settlement as contribution to the union fund and it was, in turn, to be paid to the union within three days of the payment of arrears. It was inter alia contended by the petitioner union that the said clause was in breach of the provisions of the Payment of Wages Act and while rejecting the challenge the Supreme Court observed: "It is well known that no deduction could be from the wages and salary payable to a workman governed by the Payment of Wages Act unless authorised by the Act. A settlement arrived at on consent of parties can however permit a deduction as it is the outcome of understanding between the parties even though such deduction may be not authorised or legally permissible under the Payment of Wages Act."11.In the instant case it is not disputed that the settlement arrived by the union with the appellant company was not in the course of conciliation proceedings. Therefore, it would be binding on the parties to the agreement namely the appellant company on the one hand and the union representing the respondent workman who was its member. In the circumstances, the respondent workman also would be ordinarily bound by the settlement entered into by his representative union with the company unless it is shown that the said settlement was ex facie unfair, unjust or malafide. No such case was even alleged much less made out by the respondent workman either before the Tribunal or before the learned single Judge. It is interesting to note that before the learned single Judge the only argument put forward on behalf of the respondent workman was that, he was not a party to the settlement and his consent was not taken by the union and, therefore, it was not binding to him. Once it is kept in view that the industrial dispute was raised by the union on behalf of the retrenched workmen including respondent workman, and it was an industrial dispute covered by section 2(k) it cannot be held that the settlement which was entered into under section 2(p) read with section 18(1) of the Act is not binding on the individual workman. 12.In the light of the aforesaid discussion it is not possible to sustain the finding of the learned single Judge that the settlement was not binding on the respondent workman on the ground that the workman was not a signatory to the settlement. 13.Ms. Shobha Gopal, however, drew our attention to the proviso to section 18(1) (Bombay Amendment) which reads as follows: "Provided that where there is a recognised union for any undertaking under any law for the time being in force, then such agreement not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee shall be arrived at between the employer and the recognised union only and such agreement shall be binding on all persons referred to in Clause (c) and Clause (d) of sub-section (3) of this section."Ms. Gopal relying upon the words "not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee" contended that union has no right to enter into settlement in respect of these categories. The argument is required to be stated only to be rejected. In the first place the settlement is not in respect of any of these categories but it pertains to the right to re-employment in terms of Section 25-G of the Act. Moreover there is nothing in the language of the proviso that the settlement in respect of the above matters will not bind the members of the union. 14.Ms. Gopal then contended that there was non-compliance with rule 58 of the Industrial Disputes (Central) Rules, 1957 as the office bearers of the union were not duly authorised by the union to enter into such settlement. She referred to the judgments of the Supreme Court in Workmen of M/s. Delhi Cloth General Mills Ltd. vs. The Management of M/s. Delhi Cloth and General Mills Ltd. 1970 LIC 1407 and Brooke Bond India Ltd. vs. Workmen 1981 II LLJ 184. The above contention was not raised before the trial court or before the learned single Judge. It is impermissible to raise such a contention at this belated stage. In fact the Tribunal has recorded a finding that there was compliance with the rules and the copies of the settlement were sent to the Commissioner of Labour, Conciliation Officer, Secretary of Industries, Energy and Labour Department of the Central Government. 15.Lastly Ms. Gopal challenged the settlement by taking recourse to section 25-J of the Act. This contention is equally without any substance and not tenable. In the present case the reference is in respect of the action of the management in not reemploying the workman and it does not relate to the retrenchment or layoff and, therefore, Chapter VB which contains this provision has no application.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In the present case the union is recognised union under the Code of Discipline in respect of the Dock Workers working in the appellant company. Therefore, the settlement entered into by the Union with the employer would be binding on itstherefore, negotiations take place which have to be encouraged, particularly between labour and employer in the interest of industrial peace andthere is always give and take. The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust. It was further observed that it is not possible to scan the settlement in bits and pieces and held some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweights all the other advantages gained the Court will be slow to hold a settlement as unfair and unjust. The settlement has to be accepted or rejected as athe instant case it is not disputed that the settlement arrived by the union with the appellant company was not in the course of conciliation proceedings. Therefore, it would be binding on the parties to the agreement namely the appellant company on the one hand and the union representing the respondent workman who was its member. In the circumstances, the respondent workman also would be ordinarily bound by the settlement entered into by his representative union with the company unless it is shown that the said settlement was ex facie unfair, unjust or malafide. No such case was even alleged much less made out by the respondent workman either before the Tribunal or before the learned single Judge. It is interesting to note that before the learned single Judge the only argument put forward on behalf of the respondent workman was that, he was not a party to the settlement and his consent was not taken by the union and, therefore, it was not binding to him. Once it is kept in view that the industrial dispute was raised by the union on behalf of the retrenched workmen including respondent workman, and it was an industrial dispute covered by section 2(k) it cannot be held that the settlement which was entered into under section 2(p) read with section 18(1) of the Act is not binding on the individualShobha Gopal, however, drew our attention to the proviso to section 18(1) (Bombay Amendment) which reads asthat where there is a recognised union for any undertaking under any law for the time being in force, then such agreement not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee shall be arrived at between the employer and the recognised union only and such agreement shall be binding on all persons referred to in Clause (c) and Clause (d) of(3) of this section."Ms. Gopal relying upon the words "not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee" contended that union has no right to enter into settlement in respect of these categories. The argument is required to be stated only to be rejected. In the first place the settlement is not in respect of any of these categories but it pertains to the right toin terms of SectionGopal then contended that there waswith rule 58 of the Industrial Disputes (Central) Rules, 1957 as the office bearers of the union were not duly authorised by the union to enter into such settlement. She referred to the judgments of the Supreme Court in Workmen of M/s. Delhi Cloth General Mills Ltd. vs. The Management of M/s. Delhi Cloth and General Mills Ltd. 1970 LIC 1407   and Brooke Bond India Ltd. vs. Workmen 1981 II LLJ 184. The above contention was not raised before the trial court or before the learned single Judge. It is impermissible to raise such a contention at this belated stage. In fact the Tribunal has recorded a finding that there was compliance with the rules and the copies of the settlement were sent to the Commissioner of Labour, Conciliation Officer, Secretary of Industries, Energy and Labour Department of the CentralMs. Gopal challenged the settlement by taking recourse to sectionof the Act. This contention is equally without any substance and not tenable. In the present case the reference is in respect of the action of the management in not reemploying the workman and it does not relate to the retrenchment or layoff and, therefore, Chapter VB which contains this provision has no application.