Ekta Union Vs. Management of M/S. Birla Cotton
Spinning and Weaving Mills  Insc 183 (16 March 2005)
Hegde,B.P. Singh & S.B. Sinha B.P. Singh, J.
appellant Kapra Mazdoor Ekta Union has preferred this appeal by special leave
which is directed against the judgment and order of the High Court of Delhi at
New Delhi in Civil Writ Petition No. 2084 of 1990 dated August 31, 2001 whereby
the writ petition preferred by the respondent- Management of M/s. Birla Cotton
Spinning and Weaving Mills Limited was allowed and the order dated February 19,
1990 passed by the Presiding Officer, Industrial Tribunal No. II, Delhi was quashed. By the said order the
Industrial Tribunal had in effect recalled its Award of June 12, 1987 and framed an additional issue to
be tried by the Tribunal. The High Court held that the Award dated June 12, 1987 had effectively terminated the
industrial dispute referred to the Tribunal by the appropriate Government on December 13, 1982.
view to appreciate the submissions urged before us it would be necessary to
notice the factual background in which these questions have arisen.
appellant-Union is one of the eight Unions representing the workers employed in
the respondent-Company. In the year 1982 on account of closure of some looms of
the Weaving Section of the Mill disputes arose between the workmen and the
Management of the respondent-Company. The appropriate Government in exercise of
its powers conferred by Section 10(1)(d) and 12(5) of the Industrial Disputes
Act, 1947 (hereinafter referred to as 'the Act') referred the said disputes to
the Industrial Tribunal, Delhi vide Notification dated December 13, 1982. The
reference was in the following terms :-
Whether the action of the Management in refusing duties to a large number of
workers is illegal and/or unjustified, and if so, what directions are necessary
in this regard?
Whether the Management is justified in closing down a large number of looms in
the mill and if not to what relief the affected workers are entitled and what
further directions are necessary in this respect?"
the reference was pending before the Industrial Tribunal, a settlement is
purported to have been arrived at between the respondent-Management and its
workmen. According to the Management this settlement was reached in the course
of conciliation proceedings with the assistance and concurrence of the
Conciliation Officer, namely the Deputy Labour Commissioner- cum-Conciliation
Officer, Delhi M. Basai. It is the case of the respondent-Management that after
reference of the dispute further disputes arose between the Management and the
Workmen and a notice of strike was served on the Management and some more
demands were raised. The notice of strike was served on February 14, 1983 and
the Management on April 4, 1983 gave notice under Section 25FFA of the
Industrial Disputes Act for closing the undertaking relating to the Weaving
Mill on account of labour trouble resulting in huge financial losses. It is the
case of the respondent-Management that in these circumstances conciliation
proceedings commenced and after great and sustained efforts, a settlement was
arrived at between the Management and its Workmen in the course of conciliation
proceedings. The settlement has been reduced into writing, and it is not
disputed that the same has been signed by representatives of the Management as
well as the representatives of two Workers' Union
as also by the Deputy Labour Commissioner-cum-Conciliation Officer, M. Basai.
view of the settlement reached between the parties, an application was moved
before the Industrial Tribunal which was seized of the disputes, which were the
subject matter of the reference made on December 13, 1982, with a prayer that
in view of the settlement reached between the parties the Industrial Tribunal
may be pleased to give its award in terms of the conciliation settlement dated
May 17, 1983. One of the terms of the settlement was to the effect that both
the parties will present a petition before the Industrial Tribunal, Delhi with
a request to accept the terms of the settlement as fair and reasonable and to
give its award in terms of the settlement in the disputes pending before it
pursuant to the reference made on December 13, 1982.
application made by the Management for passing an award in terms of the
settlement dated May
17, 1983 was opposed
by the appellant-Union on various grounds. It was submitted by the
appellant-Union that only two of the Unions had signed the settlement who
represented a very insignificant number of workmen.
settlement was a private settlement and the workers who were not members of
those two Unions were not bound by the settlement.
further submitted that in May, 1983, when the settlement is said to have been
arrived at, no conciliation proceedings were pending before the Conciliation
Officer and, therefore, the Conciliation Officer had no power or justification
to record such a settlement, particularly during the pendency of the earlier
also the case of the appellant-Union that the settlement did not settle the
disputes which had been referred to the Tribunal for adjudication. The
settlement was unfair and unjust to the workmen and, therefore, not acceptable
to the appellant-Union.
appellant-Union filed a writ petition before the High Court of Delhi at New Delhi contending that the settlement
dated May 17, 1983 was not a conciliation settlement
binding upon all the workmen. The writ petition was dismissed by the High Court
by its order dated January
3, 1986. The matter
was brought before this Court in Special Leave Petition (Civil) No. 1526 of
1985 which was also dismissed by this Court on August 5, 1986 with the following observations :-
We have heard learned counsel for the parties. We do not see any reason why we
should entertain this Special Leave Petition at this stage. It is conceded that
the settlement between the employer and certain trade Unions has been filed
before the Industrial Tribunal to which a reference of this dispute was made
and a settlement was filed before the Tribunal three years ago.
for the Industrial Tribunal to dispose of the question whether the settlement
is valid and binding between the employer and the workmen. It is only after the
Industrial Tribunal has disposed of the matter that this Court may look into
it. While we dismiss the Special Leave Petition, we may observe that the
Industrial Tribunal should dispose of the question as to the validity and
binding nature of the settlement as expeditiously as possible. Having regard to
the lapse of time which has taken place we trust that the Industrial Tribunal
will be able to adjudicate on the matter within three months from today."
In the light of the order of this Court the Industrial Tribunal heard the
parties and passed an Award on June 12, 1987.
The Award is a detailed reasoned Award. The Tribunal took note of the
background in which the disputes had arisen and the reference made to it. It
rejected the argument of the appellant-Union that once a reference is made, the
Labour Department of the appropriate Government becomes functus officio in the
matter. After considering to the decisions of this Court in State of Bihar vs. D.N. Ganguly & Ors. : 1959
1 SCR 1191 ; Sirsilk Limited vs. Government of Andhra Pradesh and another : AIR
1964 SC 160 and Paraga Tools Ltd. vs. Mazdoor Sabha : 1975(I) LLJ 210 it
concluded that merely because a dispute had been referred to the Industrial
Tribunal for adjudication, it did not prevent the Conciliation Officer from
playing his role when other disputes arose between the parties and the
industrial peace was disturbed. It noticed the fact that in the instant case a
notice of strike was given on February 14, 1983
and a notice of closure of a part of the undertaking on April 4, 1983. The workers were disturbed and the
atmosphere was surcharged. In this background if the Conciliation Officer
intervened in an attempt to bring about a settlement, it cannot be contended
that he had no jurisdiction to do so. In fact the Labour Department was not
only justified but legally competent and compelled to set the conciliation
proceedings in motion so as to restore industrial peace.
found that the settlement was brought about in the course of conciliation
proceedings, the Tribunal considered the terms of settlement and recorded the
following conclusion :- " I have carefully gone through the terms of the
settlement. These are not only well bargained but quite detailed and very sound
in the circumstances obtaining.
various items made provision for meeting all the relevant problems of relief
and rehabilitation of the affected workers because of the closure of weaving
section of the mill and envisages an expert technical body for deciding on the
possibility and extent of the revival of weaving work in the Mill, under the
time bound schedule. I find the settlement fair and just."
Tribunal, therefore, concluded that the settlement of May 17, 1983 was a settlement reached between
the Workmen and the Management in the course of conciliation proceedings and
hence binding on all the workers of the respondent-Company. It proceeded to
decide the reference declaring that the disputes stood settled as between the
parties by a valid and binding settlement dated May 17, 1983 and thus the reference had been rendered redundant. There
was no dispute surviving and no purpose was left in making the terms of a valid
and binding settlement of 1983 as a part of the award, as all the agreed terms
should stood executed and implemented. The order of the Industrial Tribunal
making the Award is of June
12, 1987. The said
Award was duly published by the appropriate Government in the Gazette on August 10, 1987.
On September 7, 1987 the appellant-Union filed an
application before the Industrial Tribunal to the effect that the only question
which had been argued before the Tribunal was in relation to the power and
jurisdiction of the Conciliation Officer to record settlement between the
parties during the pendency of the disputes.
question as to whether the settlement was fair and just, and should be accepted
by the Tribunal, was not argued since that required evidence. It was,
therefore, understood that the said question will be decided later on in case
the Tribunal held that the Conciliation Officer had jurisdiction to record the
settlement. Under some misconception the Tribunal had determined the terms of
the settlement to be fair and just and had passed an Award on June 12, 1987. It was, therefore, prayed that the
appellant-Union be given an opportunity to establish that the settlement was
neither just nor fair.
this purpose the Award may be recalled and the appellant-Union be given an
opportunity to establish that the settlement is unjust and unfair, adversely
affecting a large number of workmen. It was prayed that the Award may be
recalled which was in fact an ex-parte Award, and the question of fairness of
the settlement be decided after providing an opportunity to the parties to
application filed by the appellant-Union was strongly opposed by the
respondent-Management, but the successor Presiding Officer of Industrial
Tribunal No.II, Delhi allowed the application.
observed that a perusal of the order dated June 12, 1987 showed that the then Tribunal did
not make a single observation as to whether the settlement dated May 17, 1983 was just and fair. No issue was
framed nor any evidence was recorded on that point. No argument was advanced
and no finding was given by his learned predecessor on this point. Relying upon
the judgment of this Court in Satnam Verma vs. Union of India : 1984 (supp) SCC
712 and Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and
others : 1980 (Supp) SCC 420 it was held that where the Tribunal proceeds to
make an Award without notice to a party, the Award is a nullity and, therefore,
the Tribunal has not only the power but also the duty to set aside such an ex-parte
Award. It was held that in the instant case no arguments were advanced and no
finding was given as to whether the settlement was just and fair. In view of
its finding that the Tribunal has power to review its Award even if the same is
published in the Gazette, the Tribunal proceeded to exercise its power to
review its earlier order dated June 12, 1987.
further framed an additional issue which is as follows:- "Whether the
settlement dated 17.5.1983 is just and fair and if so, is it not binding on the
parties?" It further directed that only arguments shall be heard since
there was no need to record evidence on this point. Accordingly by its order of
February 19, 1990 the Industrial Tribunal decided to
review its earlier order and framed an additional issue as to whether the
settlement was just and fair.
Management-respondent herein preferred a writ petition before the High Court of
Delhi at New Delhi and sought quashing of the order
dated February 19, 1990 passed by Industrial Tribunal No. II,
Delhi, and for declaration that the Award
dated June 12, 1987 earlier made by the Tribunal
effectively terminated the reference pending before it. The High Court by its
impugned judgment and order allowed the writ petition and granted the reliefs
judgment and order of the High Court has been impugned before us in this
core question which arises for consideration is whether the Industrial Tribunal
was justified in recalling the earlier Award made on June 12, 1987 and in framing an additional issue
for adjudication by the Tribunal. According to the appellant the recall of the
order was fully justified in the facts of the case, while the respondents
contend to the contrary. Two issues arise for our consideration while
considering the legality and propriety of the Tribunal in recalling its earlier
Award. Firstly - whether the Tribunal had jurisdiction to recall its earlier
order which amounted virtually to a review of its earlier order; and secondly -
whether the Tribunal had no jurisdiction to entertain the application for
recall as it had become functus offico. The High Court answered the first
question in favour of the respondent-Management and the second in favour of the
shall first take up the second question namely whether the Tribunal was functus
offico having earlier made an Award which was published by the appropriate
Government. It is not in dispute that the Award was made on June 12, 1987 and
was published in the Gazette on August 10, 1987. The application for recall was
made on September 7, 1987. Under sub-section (1) of Section 17A of the Act an
Award becomes enforceable on the expiry of 30 days from the date of its
publication under Section 17 of the Act. Thus the Award would have become
enforceable with effect from September 9, 1987. However, the application for
recalling the Award was made on September 7, 1987 i.e. 2 days before the Award would have become enforceable
in terms of sub-section (1) of Section 17A of the Act.
High Court rightly took the view that since the application for recall of the
order was made before the Award had become enforceable, the Tribunal had not
become fuctus offico and had jurisdiction to entertain the application for
recall. This view also find supports from the judgment of this Court in Grindlays
Bank Ltd. vs. Central Government Industrial Tribunal and others (supra). This
Court after noticing the provisions of sub-section (3) of Section 20 of the Act
which provides that the proceedings before the Tribunal would be deemed to
continue till the date on which the Award become enforceable under Section 17A,
held that till the Award becomes enforceable the Tribunal retains jurisdiction
over the dispute referred to it for adjudication, and up to that date it has
the power to entertain the application in connection with such dispute. The
jurisdiction of the Tribunal had to be seen on the date of the application made
to it and not the date on which it passed the impugned order. The judgment in Grindlays
Bank Ltd. vs. Central Government Industrial Tribunal and others (supra) has
been reiterated by this Court in Satnam Verma vs. Union of India (supra), J.K.
Synthetics Ltd. vs. Collector of Central Excise : (1996) 6 SCC 92 and M.P.
Electricity Board vs. Hariram etc. : JT 2004 (8) SC 98.
instant case as well we find that as on September 7, 1987 the Award had not
become enforceable and, therefore, on that date the Tribunal had jurisdiction
over the disputes referred to it for adjudication. Consequently it had the
power to entertain an application in connection with such dispute. The order of
recall passed by the Tribunal on February 19, 1990, therefore, cannot be
assailed on the ground that the Tribunal had become fuctus offico.
question still remains whether the Tribunal had jurisdiction to recall its
earlier Award dated June 12, 1987. The High Court was of the view that in the
absence of an express provision in the Act conferring upon the Tribunal the
power of review the Tribunal could not review its earlier Award. The High Court
has relied upon the judgments of this Court in Dr. (Smt.) Kuntesh Gupta vs.
Management of Hindu Kanya Maha Vidyalaya, Sitapur (U.P.) and others : (1987) 4
SCC 525 and Patel Narshi Thakershi and others vs. Pradyumansinghji Arjunsingji
: AIR 1970 SC 1273 wherein this Court has clearly held that the power of review
is not an inherent power and must be conferred by law either expressly or by
necessary implication. The appellant sought to get over this legal hurdle by
relying upon the judgment of this Court in Grindlays Bank Ltd. vs. Central
Government Industrial Tribunal and others (supra). In that case the Tribunal
made an ex-parte Award. Respondents applied for setting aside the ex-parte
Award on the ground that they were prevented by sufficient cause from appearing
when the reference was called on for hearing. The Tribunal set aside the ex-parte
Award on being satisfied that there was sufficient cause within the meaning of
Order 9 Rule 13 of the Code of Civil Procedure and accordingly set aside the
ex-parte Award. That order was upheld by the High Court and thereafter in
appeal by this Court.
was, therefore, submitted before us relying upon Grindlays Bank Ltd. vs.
Central Government Industrial Tribunal and others (supra) that even in the
absence of an express power of review, the Tribunal had the power to review its
order if some illegality was pointed out. The submission must be rejected as
misconceived. The submission does not take notice of the difference between a
procedural review and a review on merits. This Court in Grindlays Bank Ltd. vs.
Central Government Industrial Tribunal and others (supra) clearly highlighted
this distinction when it observed:- "Furthermore, different considerations
arise on review. The expression 'review' is used in the two distinct senses,
procedural review which is either inherent or implied in a court or Tribunal to
set aside a palpably erroneous order passed under a mis-apprehension by it, and
review on merits when the error sought to be corrected is one of law and is
apparent on the face of the record.
in the latter sense that the court in Patel Narshi Thakershi case held that no
review lies on merits unless a statute specifically provides for it. Obviously
when a review is sought due to a procedural defect, the inadvertent error
committed by the Tribunal must be corrected ex debita justitiae to prevent the
abuse of its process, and such power inheres in every court or Tribunal".
these principles it is apparent that where a Court or quasi judicial authority
having jurisdiction to adjudicate on merit proceeds to do so, its judgment or
order can be reviewed on merit only if the Court or the quasi judicial
authority is vested with power of review by express provision or by necessary
implication. The procedural review belongs to a different category. In such a
review, the Court or quasi judicial authority having jurisdiction to adjudicate
proceeds to do so, but in doing so commits a procedural illegality which goes
to the root of the matter and invalidates the proceeding itself, and
consequently the order passed therein. Cases where a decision is rendered by
the Court or quasi judicial authority without notice to the opposite party or
under a mistaken impression that the notice had been served upon the opposite
party, or where a matter is taken up for hearing and decision on a date other
than the date fixed for its hearing, are some illustrative cases in which the
power of procedural review may be invoked. In such a case the party seeking
review or recall of the order does not have to substantiate the ground that the
order passed suffers from an error apparent on the face of the record or any
other ground which may justify a review. He has to establish that the procedure
followed by the Court or the quasi judicial authority suffered from such
illegality that it vitiated the proceeding and invalidated the order made
therein, inasmuch the opposite party concerned was not heard for no fault of
his, or that the matter was heard and decided on a date other than the one
fixed for hearing of the matter which he could not attend for no fault of his.
In such cases, therefore, the matter has to be re-heard in accordance with law
without going into the merit of the order passed. The order passed is liable to
be recalled and reviewed not because it is found to be erroneous, but because
it was passed in a proceeding which was itself vitiated by an error of
procedure or mistake which went to the root of the matter and invalidated the
entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial
Tribunal and others (supra), it was held that once it is established that the
respondents were prevented from appearing at the hearing due to sufficient
cause, it followed that the matter must be re-heard and decided again.
facts of the instant case are quite different. The recall of the Award of the
Tribunal was sought not on the ground that in passing the Award the Tribunal
had committed any procedural illegality or mistake of the nature which vitiated
the proceeding itself and consequently the Award, but on the ground that some
mattes which ought to have been considered by the Tribunal were not duly
considered. Apparently the recall or review sought was not a procedural review,
but a review on merits. Such a review was not permissible in the absence of a
provision in the Act conferring the power of review on the Tribunal either expressly
or by necessary implication.
counsel for the appellant then sought to argue that there was no conciliation
proceeding in progress when the alleged settlement is said to have been reached
on May 17, 1983. The submission ignores the findings of fact recorded by the
Tribunal in its order dated June 12, 1987 that while the reference was pending
before the Tribunal certain events took place which compelled the Deputy Labour
Commissioner-cum-Conciliation Officer to intervene. As noticed earlier a notice
of strike was served on the Management on February 14, 1983 by one of the
Unions. On the other hand the Management gave notice on April 4, 1983 under
Section 25 FFFA of the Act for closing part of the undertaking related to the
weaving section. These facts leave no manner of doubt that there was labour
unrest coupled with the fear of strike and closure. The settlement itself
recites the fact that there were series of bipartite and tripartite meetings
between the representatives of the Management and the Unions in view of the labour
unrest and threat of closing down the operation of the weaving department.
Meetings were also held in the office of the Chief Labour Commissioner with a
view to resolve the dispute and a meeting was thereafter held on May 17, 1983
in the office of Shri K. Saran, Joint Chief Labour Commissioner (Central) where
the representatives of the Management and the Unions participated alongwith the
officers of the Labour Depatment which ultimately resulted in a settlement. All
these facts establish beyond doubt that there was labour unrest and the
Conciliation Officer intervened in the matter and made attempts to bring about
a settlement. The submission, therefore, that no conciliation proceeding was in
progress when the settlement was arrived at, must be rejected.
counsel for the appellant then submitted that the settlement was not arrived at
with the assistance and concurrence of the Conciliation Officer. It was
submitted, relying upon the decision of this Court in: The Bata Shoe Co. (P)
Ltd. vs. D.N. Ganguly and others : AIR 1961 SC 1158 that a settlement which is
made binding under Section 18(3) of the Act on the ground that it is arrived at
in the course of conciliation proceedings is a settlement arrived at with the
assistance and concurrence of the Conciliation Officer. Such a settlement
brought about while conciliation proceedings are pending, are made binding on
all parties under Section 18 of the Act.
was placed on the judgment of this Court in Workmen of M/s. Delhi Cloth and
General Mills Ltd. vs. The Management of M/s. Delhi Cloth and General Mills
Ltd. : (1969) 3 SCC 302.
counsel for the respondents did not dispute the legal position as it emerges
from these two judgments. It was submitted that the facts of this case clearly
establish that the Conciliation Officer intervened when there was considerable labour
unrest and brought the parties to the negotiating table. Several meetings were
held, some of them in the chambers of higher officials of the Labour
Department, and ultimately a settlement was worked out. This is quite apparent
from the fact that the terms of settlement has also been signed by the
Conciliation Officer, apart from the representatives of the Management and
representatives of the two workers' Union. We entertain no doubt that the
settlement was brought about in the course of conciliation proceedings with the
assistance and concurrence of the Conciliation Officer.
also urged before us by the learned counsel for the appellant that the Tribunal
ought to have considered, while passing an Award on June 12, 1987, that the
settlement was just and fair and protected the interest of the workmen. The
recall of the order was sought on the ground that this aspect of the matter had
not been considered when an Award was made in terms of the settlement.
was precisely the ground on which the Tribunal entertained the application for
recall and allowed it by order dated February 19, 1990. The Tribunal in our
view proceeded on a factually incorrect assumption. The High Court has found
that the Tribunal while making an Award in terms of the settlement has in clear
terms recorded its satisfaction in paragraph 25 of its order (which we have
quoted earlier in the judgment) that the settlement was fair and just.
entirely agree with the High Court.
lastly submitted that the settlement did not resolve the disputes which were
subject matter of reference made to the Tribunal. The submission again proceeds
on a misreading of the settlement. It is no doubt true that the disputes
referred to the Tribunal mainly arose on account of the Management closing down
a large number of looms which necessitated a curtailment of the work force on
account of which the Management refused to give work to a large number of
workers. We find that Clause 3.2 of the settlement in terms deals with the
dispute relating to the weaving department and other allied departments. This
submission, therefore, has no force.
result we find no merit in this appeal and the same is accordingly dismissed,
but with no order as to costs.