P. Virudhachalam
& Ors Vs. The Management of Lotus Mills & ANR [1997] INSC 908 (9 December 1997)
S.B.
MAJMUDAR, M. JAGANNADHA RAO.
ACT:
HEADNOTE:
S.B. Majmudar,
J :
A
short but an interesting question arises for consideration in this appeal by
certificate granted by the High Court of Judicature at Madras under Article 133(1) of the
Constitution of India. It reads as under :- "Whether an individual workman
governed by the Industrial Disputes Act, 1947 (hereinafter referred to as 'the
Act') can claim lay-off compensation under Section 25C of the Act despite a
settlement arrived at during conciliation proceeding under Section 12(3) of the
Act by a union of which he is not a member and when such settlement seeks to
restrict the right of lay-off compensation payable to such workman as per the
first proviso to Section 25-C of the Act." A few relevant facts leading to
these proceedings require to be stated at the outset :-
BACKGROUND
FACTS :
The
five appellants before us were employed at the relevant time under Respondent
No.1 in various departments.
Respondent
No.1 was running a textile mill wherein the appellants were employed. The said
textile mill remained closed due to financial crisis from 8.8.1976 to
31.1.1978.
The
workmen of the mill raised a dispute pertaining to lay- off during the
aforesaid period and claimed appropriate wages for the said period. In the
conciliation proceedings a settlement was arrived at between the parties on
28.2.1977.
Five
unions representing all the workmen took part in the conciliation proceedings.
A settlement was arrived at in these proceedings between the management on the
one hand and the unions on the other. In clause 6 of the settlement, it was
provided that lay-off compensation would be paid for the days during which the
mill did not function and marked as "no work". It was also agreed
that the compensation would be paid after January 1981 in instalments and the
question as to the number of instalments would be decided by both parties on
mutual discussion in January 1980. Though it was agreed under that settlement
in January 1980, the workers insisted upon immediate payment of compensation
and raised another dispute, Consequently, the earlier settlement lost its
efficacy. Again in the matter was referred to the conciliation officer who held
negotiation. Different unions representing various categories of workmen took
part in the negotiation. The union representing the present appellants also
took part in the said negotiation. Ultimately a fresh settlement was arrived at
during conciliation proceedings as per Section 12(3) of the Act on 5.5.1980.
Out of five unions representing the workmen of Respondent No.1 - Textile Mill,
four unions signed the said settlement but the union representing the
appellants did not think it fit to sign the same. The relevant terms of the
aforesaid settlement under Section 12(3) of the Act in connection with the
payment of lay-off compensation read as under :- "TERMS OF SETTLEMENT
"
1. It
is agreed that this settlement shall be applicable to all permanent employees
of the Mills except (a) Watchman (b) Electrical Department workers (c) Staff in
respect of whom a separate settlement has been signed.
2. It
is agreed that in respect of the period 8.8.1976 to 7.8.1977, all workers who
were laid off during that period shall be paid lay-off compensation for the
first forty-five days of lay off and that no compensation shall be payable in
respect of the days of lay-off after the expiry of the first forty-five days.
3. In
is further agreed that in respect of the period 9.8.1977 to 31.1.1978, all
workmen who were laid-off during that period shall be paid lay off compensation
for the first forty-five days of lay- off and that no compensation shall be
payable in respect of the days of lay-off after the expiry of the first forty
five days.
4. In
addition to the lay-off compensation payable under Clauses (2) and (3) above
each permanent workman shall be paid an ex-gratia sum which shall be calculated
as follows :
The
total of the compensation amount payable to each permanent worker under clauses
(2) and (3) above and the ex-gratia amount shall be equal to 67% of the total
lay-off compensation payable for him in respect of all the days of lay-off
during the period 8.8.1976 to 31.1.1978." It is not in dispute appellants
were in paragraph 1 of the settlement, meaning thereby they were covered by the
said settlement. The question is as to whether they would be bound by the
settlement and the terms regarding the payment of retrenched lay-off
compensation, when their union did not sign the said settlement. The appellants
on the ground that their union had not signed the settlement, filed application
under Section 33C(2) of the Act for computing the appropriate lay-off
compensation payable to them as per Section 25C of the Act. The Labour Court
after hearing the parties allowed the said application on the ground that the
appellants individually had not entered into any agreement with the management
and consequently the proviso to Section 25C of the Act would not come in their
way and, therefore, they were entitled to be paid 50% lay-off compensation for
the entire period during which they were laid-off i.e. from 8.8.1976 to
31.1.1978 and the term of the settlement under Section 12(3) arrived at during
compensation at 67% of the permissible statutory lay-off compensation would not
be binding on the appellants. Accordingly, the amounts payable to the
appellants were computed by the Labour Court and were directed to be paid by
Respondent No.1 by its Order dated 30.1.1982. Respondent No.1 carried the
matter in Writ Petition being No. 2962 of 1982 in the Madras High Court.
The
Court by its impugned judgment dated 11.8.1989 held that the settlement arrived
at during conciliation proceeding under Section 12 (3) was binding to all the
workmen being parties to industrial dispute as per Section 18(3) of the Act and
consequently the said settlement could be treated as an agreement arrived at
between all the workmen as per the first proviso to Section 25C and, therefore,
the appellants could not claim anything more than what was permissible and
payable to them as per the binding terms of the settlement dated 5.5.1980. The
writ petition of Respondent No.1 was, therefore allowed and the claim petition
under Section 33C(2) as moved by the appellants was dismissed. However, while
dismissing the same, the High Court granted a certificate under Article 133(1)
of the Constitution for leave for appeal to this Court and that is show this
appeal was filed in this Court and has reached the final hearing before us.
CONTENTIONS
ON BEHALF OF THE APPELLANTS :
Learned
counsel for the appellants vehemently contended that Section 25C is in Chapter VA of the Act and it represents a complete code in itself. that the
statutory right given to the workmen under Section 25C of Chapter Va cannot be whittled down, save and except by an agreement entered into
between the workmen concerned and the employer as provided by the first proviso
to Section 25C of the Act.
But
before the provisions of the said proviso are attracted, it should be shown
that the workman who has a statutory right under Section 25C has willingly
agreed to give up his right by entering into such an agreement with the right
by entering into such an agreement with the employer. That such an agreement
was independent of any settlement contemplated under Section 12(3) of the Act
which could have any binding effect under Section 18(3) of the Act. It was
submitted that on a conjoint reading of Sections 25C and 25J, it has to be held
that any inconsistent in any other part of the Act itself would not whittle
down the right to receive lay-off compensation as guaranteed to the workman
under Section 25C of the Act and consequently the settlement arrived at under
Section 12(3) of the Act would not have any adverse effect on the right of the
appellants who admittedly had not entered into any independent agreement with
the management curtailing their right under Section 25C of the Act to receive
50% statutory compensation during the entire lay-off period. The contesting Respondent
No.1 being served has not though it fit to appear in these proceedings.
STATUTORY
SCHEME :
In
order to appreciate the aforesaid contentions canvassed by counsel for the
appellants, it will be necessary to have a look at the statutory scheme of the Act.
The
act is enacted for resolving industrial disputes between workmen and employer
which would have pernicious effect on industrial peace and industrial
production and which would in their turn adversely affect the economy of the
Nation as a whole. The act is enacted to make provisions for the investigation
and settlement of industrial disputes for the investigation and settlement of
industrial disputes and for certain other purposes mentioned in the Act. Under
the Act, the principal bargaining, (2) Mediation and conciliation, (3)
Investigation, (4) Arbiration, and (5) Adjudication, The scheme of the Act
shows that adjudication is to be resorted to as the last alternative. Before
any matter is referred for adjudication under Section 10 of the Act, there should
be an attempt for conciliation. As laid down by this Court in Herbertsons Ltd.
vs. The Workmen of Herbetsons Ltd. & Ors. (AIR 1977 SC 322) any settlement
between the employer and the employees is placed on a higher pedestal that an
ward passed after adjudication. It is easy to visualise that individual workmen
have by themselves scant bargaining power. Therefore, their disputes have to be
highlighted by their bargaining agents, namely, their unions representing the
body of workmen so that the bargaining power of individual workmen can get strengthned.
As per Section 36 of the Act, a workman who is a party to a dispute shall be
entitled to be represented in any proceeding under this Act by any member of
the executive or other office bearer of a registered trade union of other
office bearer of a registered trade union of which he is a member. The
machinery of the Act envisages resolution of industrial disputes and conflicts
at the grassroot level by conciliation by which settlement can be arrived at
between the employer and the workmen and industrial peace can be achieved and
industrial strife can be put to an end. The Act envisages two types of
settlements between the warring groups of employer and employees. As defined by
Section 2(P) of the Act, "settlement" means a settlement arrived at
in the course of conciliation proceeding and includes a written agreement
between the employer and workmen arrived at otherwise than in the course of
conciliation proceedings where such agreement has been signed by the parties
thereto in such manner as may be prescribed and a copy thereof has been sent to
an officer authorised in this behalf by the appropriate Government and the
conciliation officer. Thus, a settlement which is based on a written agreement
between the parties can be arrived at either in conciliation proceedings or
even outside conciliation proceedings between the representatives of the
workmen on the one hand and the management on the other. But even if such
written agreement signed by the parties is arrived at outside conciliation
proceeding, it would become a settlement, once the prescribed procedure as
envisaged by Section 2(p) is followed. So far as settlements arrived at in the
course of conciliation proceedings are concerned, Section 12 of the Act deals
with such settlements. As laid down by Section 12(1) where any industrial
dispute exists or is apprehended, the conciliation officer may, or where the
dispute relates to a public utility service and a notice under Section 22 has
been given shall, hold conciliation proceedings in the prescribed manner
Sub-section (2) of Section 12 enjoins upon him for the purpose of bringing
about a settlement of the dispute, without delay to investigate the dispute and
all matters affecting the merits and the right settlement thereof and to make
all efforts as he thinks fit for the purpose of inducing the parties to come to
a fair and amicable settlement of the dispute. Then follows sub-section (3) of
Section 12 under which settlement in the present case saw the light of the day.
It reads as under :- "12 (3). If a settlement of the dispute or of any of
the matters in dispute is arrived at in the course of the conciliation
proceedings, the conciliation officer shall send a report thereof to the
appropriate Government or an officer authorised in this behalf by the
appropriate Government together with a memorandum of the settlement signed by
the parties to the dispute".
Sub-sections
(4) and (5) of Section 12 lay down that if no settlement is arrived at, the
conciliation officer shall submit a full report to the appropriate Government
which if satisfied that there is a case for reference of the dispute to a
Board, Labour Court, Tribunal or National Tribunal, as the case may be, may
make such a reference and shall record and communicate to the parties concerned
its reasons therefore. So far as the settlement arrived at outside the
conciliation proceedings is concerned, Section 18(1) deals with such settlement
and lays down that a settlement arrived at by agreement between the employer
and workmen otherwise than in the course of conciliation proceeding shall be
binding on the parties to the agreement. Sub-section (3) of section 18,
however, deals with settlement arrived at during conciliation proceedings and
lays down that settlement arrived at in the course of conciliation proceedings
under this Act, or an arbitration award in a case where a notification has been
issued under sub-section (3A) of Section 10A or an award of a Labour Court,
Tribunal or National Tribunal which has come enforceable shall be binding on -
(a) all parties to the industrial dispute;
(b)
all other parties summoned to appear in the proceedings as parties to the
dispute, unless the Board, arbitrator, Labour Court, Tribunal or National
Tribunal, as the case may be, records the opinion that they were so summoned
without proper cause:
(c)
Where a party referred to in clause (a) or clause (b) is an employer, his
heirs, successors or assign in respect of the establishment to which the
dispute relates;
(d)
Where a party referred to in clause (a) or clause (b) is composed of workmen,
all persons who were employed in the establishment or part of the
establishment, as the case may be, to which the dispute relates on the date of
the dispute and all persons who subsequently become employed in that
establishment or part.
DISCUSSION
ON THE POINT FOR CONSIDERATION :
The
aforesaid relevant provision of the Act, therefore, leave no room for doubt
that once a written settlement is arrived at during the conciliation
proceedings such settlement under Section 12(3) has a binding effect not only
on the signatories to the settlement but also on all parties to the industrial
dispute which would cover the entire body of workmen, not only existing workmen
but also future workmen. Such a settlement during conciliation proceedings has
the same legal effect as an award of Labour Court, or Tribunal or National Tribunal or an Arbitration award, They
all stand on part. It is easy to visualise that settlement contemplated by
Section 12(3) necessarily means a written settlement which would be based on a
written agreement where signatories to such settlement sign the agreement.
Therefore,
settlement under Section 12(3) during conciliation proceedings and all other
settlements contemplated by Section 2(p) outside conciliation proceedings must
be based on written agreements. Written agreements would become settlements
contemplated by Section 2(p) read with section 12(3) of the Act when arrived at
during conciliation proceedings or even outside conciliation proceedings. Thus,
written agreements would become settlements after relevant procedural
provisions for arriving at such settlements are followed. Thus, all settlements
necessarily are based on written agreements between the parties. It is
impossible to accept the submissions of learned counsel for the appellants that
settlements between the parties are different from agreements between the
parties. It is trite to observe that all settlements must be based on written
agreements and such written agreements get embeded in settlements. But all
agreements may not necessarily be settlements till the aforesaid procedure
giving the status of such settlements gets followed. In other words, under the
scheme of the Act, all settlements are necessarily to be treated as binding
agreements between the parties but all agreements may not be settlements so as
to have binding effect as provided under Section 18(1) or (3) if the necessary
procedure for giving them such status is not followed in given cases. On the
aforesaid scheme of the Act, therefore, it must be held that the settlement
arrived Respondent No.1 - Management on the one hand and the four out of 5
unions of workmen on the other, had a binding effect under Section 18(3) of the
Act not only on the members of the signatory unions but also on the remaining
workmen who were represented by the fifth union which, though having taken part
in conciliation proceedings, refused to sign the settlement. It is axiomatic
that if such settlement arrived at during the conciliation proceedings is
binding to even future workmen as laid down by Section 18(3) (d), it would ipso
facto bind all the existing workmen who are all parties to the industrial
dispute and who may not be members of union that are signatories to such
settlement 12(3) of the Act.
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. Thus principles of industrial democracy is the bed-rock 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 for as possible by entering into the settlement
outside the conciliation proceedings of if no settlement is reached and the
dispute reaches conciliator even during conciliation proceedings. In all these
negotiation 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 workmen. The unions espouse the common cause on
behalf of all their members. Consequently, settlement arrived at b 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 2A 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
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 barganing 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 vs. Chairman Industrial Tribunal, Patna
& Ors. [AIR 1961 SC 857] where in Das Gupta, J, speaking for this Court
made the following pertinent observations on the scheme of the Act, at the time
when Section 2A 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. vs. Raghunath Gopal, 1956
SCR 956 : (S) AIR 1957 SC 104), Mr.
Justice
Venkatarama Ayyar speaking for the Court pointed out after considering numerous
decision in this matter 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 of a number of workmen.
"Notwithstanding
that the language of Section 2(k) it wide enough to cover disputes between an
employer and a single employee". observed the learned Judge, "the
scheme of the Industrial Disputes Act does 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 reaffirmed by the Court in
several later decision recognises 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 several 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 therefore claim to have
a say in the conduct of the proceedings before the Tribunal.
It is
not unreasonable to think that Section 36 of the Industrial Disputes Act recognises
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........" Consequently, the provisions contained in
the first proviso to Section 35C 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 visualise that when lay-off has been imposed by the management in an
establishment or in any department thereof, there 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 dispute regarding lay-off compensation. The
individual workman can raise his grievance under Section 25C only if his
statutory right of lay-off under Section 25C is not hedged on 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 such settlement during the course of conciliation proceedings. Then only
individual workman can have full play under Section 25C for vindicating his
right of lay-off compensation.
In Barauni
Refinery Paragatisheel Shramik Parishad vs. Indian Oil Corporation Ltd. &
Ors. [AIR 1990 SC 1801], Ahmadi, J. as he ten was, speaking for a Bench of two
learned Judges of this Court had an occasion to consider the binding effect of
such a settlement arrived at during conciliation proceedings in the light of
Section 18 of the Act. The following pertinent observations, in this
connection, were made :
"
A settlement arrived at in the course of conciliation proceedings with a recognised
majority union will be binding on all workmen of the establishment, even those
who belonging to the minority union which had objected to the same. To that
extent it departs from the ordinary law of contract. The object obviously is to
up-hold the sanctity of settlements reached with the active assistance of the
Conciliation Officer and to discourage an individual employee or a minority
union from scuttling the settlement. There is an underlying assumption that a
settlement reached with the held of the Conciliation Officer must be fair and
reasonable and can, therefore, safety be made binding not only on the workmen
belonging to the union signing the settlement but also on others. That is why a
settlement arrived at in the course of conciliation proceedings is put on part
with an award made by an adjudicatory authority." In this light we have
now to examine the relevant provisions of the Act dealing with lay-off and
compensation to be paid to workmen for lay-off. Section 25C is found in Chapter VA of the Act which deals with lay-off and retrenchment. We are concerned
with lay-off in the present case. Section 25C deals with statutory right of the
workmen laid off for compensation. Sub-section (1) of Section 25C with the
first proviso reads as under :- "25C. Right of workmen laid off for
compensation. - (1) Whenever a workman (other than a badll workman or a casual
workman) whose name is borne on the muster-rolls of an industrial establishment
and who has completed not less than one year of continuous service under an
employer is laid off, whether continuously or intermittently, he shall be paid
by the employer for all days during which he is laid off, except for which
weekly holidays as may intervene, compensation which shall be equal to fifty
per cent of the total of the basic wages and dearness allowance that would have
been payable to him had he not been so laid off:
Provided
that if during any period of twelve months, a workman is so laid off for more
than forty-five days, no such compensation shall be payable in respect of any
period of the lay-off after the expiry of the first forty-five days, if there
is an agreement to that effect between the workman and the employer." It
is of course true that sub-section (1) of Section 25C lays down that if there
is a legal lay-off imposed by the employer, the permanent workman covered by
sweep of sub- section (1) of Section 25C would be entitled to be paid by way of
lay-off compensation 50% of the total wages and dearness allowances during the
relevant period of lay-off.
However,
because of the first proviso to the said section, the right of the workman to
be paid 50% lay-off compensation during the relevant period of lay-off would be
curtailed and restricted to 45 days only if there is an agreement to that
effect between the workman and the employer. The question is whether there was
such an agreement between the appellants and the employer. Learned counsel for
the appellants submitted that for attracting the first proviso to Section
25C(1), there should be independent agreement between the workman and the
employer to that effect agreeing not be demand lay-off compensation beyond 45
days of the starting of the lay-off period. It is difficult to appreciate this
contention. An agreement restricting the claim of lay-off compensation beyond
the available period of 45 days can be said to be arrived at between the
workmen on the one hand and the employer on the other as there is such an
agreement embedded in a binding settlement which has a legal effect of binding
all the workmen in the institution as per Section 18(3) of the Act. Such
building effect of the embedded agreement in the written settlement arrived at
during the conciliation proceeding would get telescoped into the first proviso
to Section 25C(1) and bind all workmen even though individually they might not
have signed the agreement with the management or their union might to have
signed such agreement with the management on behalf of its member- workmen. The
first proviso to Section 25C(1) clearly lays down that if there is an agreement
for into paying any more lay-off compensation beyond 45 days between the
workman and the employer, such an agreement has binding effect both on the
employer and the workman concerned. Such binding force gets clearly attracted
in the case of the appellants by virtue of operation of Section 12(3) read with
Section 18 of the Act emanating from the settlement arrived at during the
conciliation proceedings as aforesaid. Learned counsel, however, strongly
relied upon Section 25J of the Act for isolating the effect of Section 18(3) in
the present case, Section 25J reads as under :- "25J. Effect of laws
inconsistent with this Chapter. - (1) The provisions of this Chapter shall have
effect notwithstanding anything inconsistent therewith contained in any other
law (including standing orders made under the Industrial Employment (Standing
Orders) Act, 1946) (20 of 1946) :
Provided
that where under the provisions of any other Act of rules, orders or
notifications issued thereunder or under any standing orders or under any award,
contract of service or otherwise, a workmen is entitled to benefits in respect
of any matter to benefits in respect of any matter which are more favourable to
him than those to which he would be entitled under this Act; the workman shall
continue to be entitled to the more favourable benefits in respect of that
matter, notwithstanding that he receives benefits in respect of other matters
under this Act.
(2)
For the removal of doubts, it is hereby declared that nothing contained in this
Chapter shall be deemed to affect the provisions of any other law for the time
being in force in any State in so far as that law provides for the Settlement
of industrial disputes, but the rights and liabilities of employers and workmen
in so far as they relate to lay-off and retrenchment shall be determined in
accordance with the provisions of this Chapter." It is difficult to
appreciate how the said proviso can be of any assistance to the appellants. All
that is stated is that anything inconsistent with the provisions of Chapter VA found to have been laid down by any other law including standing orders
etc. will have no effect. Even sub-section (2) of Section 25J is to the same
effect. Therefore, Section 25J overrides any inconsistent provision of any
other law or otherwise binding rule of conduct and makes the provisions of Chapter VA operative of their own. The submission of learned counsel for the
appellants in this connection was to the effect that "any other law"
as provided in Section 25J(1) would include even the Industrial Disputes Act,
specially the provision contained in Section 18 thereof. It is difficult to
agree. Section nowhere provides that the provisions of Chapter VA shall have effect notwithstanding anything inconsistent contained in
any other chapter of the Industrial Disputes Act as well as in any other law.
Such a provisions is conspicuously absent in Section 25J (1). If submission of
learned counsel for the appellants is accepted, Section 25J(1) will have to be
re- written by introducing the additional words therein "in any other part
of this Act or" before the words "any other law" as mentioned
therein. On the express language of the said provision, therefore, such an
exercise is contra-indicated is total impermissible.
In
fact, this Court in Krishna District Co-operative Marketing Society Ltd. vs.
N.V. Purnachandra Rao & Ors. [1987 (4) SCC 9 99 (at 111)] pointed out that
the purpose of Section 25J(2) in Chapter V of the Industrial Disputes Act, 194
was to give overriding effect to the provisions of retrenchment and lay-off in
Chapter VA over cognate provisions of State laws dealing with retrenchment and
lay- off. In the above case Venkataramiah, J., (as he then was) observed :-
"By enacting Section 25J(2), Parliament, perhaps intended that the rights
and liabilities arising out of lay-off and retrenchment should be uniform
throughout India where the Central Act was in force and did not wish that the
States should have their own laws inconsistent with the Central law." The
above passage also shows that Chapter V was not intended to override any
provisions of the Industrial Disputes Act, 1947 itself.
Once
Section 25J(1) is out of the picture, Section 25C(1) will have to be read with
the proviso and once a settlement is arrived at between the parties during conciliation
proceedings as laid down by Section 18(3) the binding effect of such settlement
gets visited on all the workmen, as seen earlier. Consequently the appellants
would remain bound by the settlement which would be treated as an agreement
binding on them as contemplated by the said proviso. Once that conclusion is
reached no fault can found with the High Court taking the view on the scheme of
the Act that additional benefit which the appellants claimed under the
settlement arrived at under Section 12(3) read with Section 18 of the Act could
not be computed under Section 33C(2) of the Act and such application was,
therefore, rightly held incompetent.
It is
now time for us to refer to some decisions of this Court to which our attention
was invited.
This Court
speaking through Untwalia, J. held in Workmen of Firestone Tyre and Rubber Co.
of India (P) Ltd.. Etc. vs. The Firestone Tyre and Rubber Co etc., (1976 (1)
L.L.J. 493) that Chapter VA of the Act was a complete code and if the workmen
are found to have been laid off, the benefit of the said provision can be
attracted. It is difficult to appreciate how this decision can be of any
assistance to the counsel for the appellants as in the aforesaid case there was
no question of any binding settlement between the parties which had tried to
which did tried to whittle down the statutory right of lay-off compensation as
per the first proviso to Section 25C of the Act.
In
R.B. Bansilal Abirchand Mills Co. Ltd. vs. The Labour Court. Nagpur & Ors. [(1972) 1 SCC 154] this Court was
concerned with a question whether application under Section 33C(2) could be
filled by co-employees who claimed benefit under Section 25C of the Act for
lay-off compensation even though those workmen had not filed such application
earlier. Even in that case there was no question of any binding effect of any
settlement under Section 12(3) read with Section 18(3) of the Act.
In
Workmen of Dewan Tea Estate & Ors. vs. The Management [(1964) 5 SCR 548]
this Court was concerned with the question whether lay-off compensation could
be claimed by the workmen under section 25C even though such claim was not
covered by the standing orders. It was held that the lay-off compensation would
be permissible only where one or the other of the factors mentioned by Section
2(kkk) is present, and for such a lay-off compensation would be permissible
only where one or the other of the factors mentioned by Section 2(kkkk) is
present, and for such a lay- off, compensation could be awarded under Section
25C. Even in this case the question of binding effect of a settlement arrived
at during conciliation proceedings and curtailment of right of workmen laid-off
for compensation under Section 25C of the Act was not on the anvil of scrutiny.
In the
Cachar Chah Sramik Union Silchar, Assam vs. The Management of the Tea Estate of
Cachar, Assam [(1966 (2) SCR 344] it was held that even though the management
might have given ex-gratia compensation to the workmen laid-off they were
entitled to claim lay-off compensation as per the Act and as per the relevant
standing Orders. The aforesaid decision cannot advance the case of the
appellants as there was no question of any binding effect of any settlement
arrived at between the parties which would govern the claim of all the workmen
even though their union might not have been signatory to such settlement during
conciliation proceedings.
In the
result this appeal fails and is dismissed. In the facts and circumstances of
the case, there will e no order as to costs.
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