JUDGMENT
1. Petitioner No. 1 herein is Hindustan Zinc Workers’ Union which is a registered Trade Union, representing the workers of Ageigundala Lead Project, Bandalamottu in Guntur District. Petitioner No. 2, who was employed in the Agnigundala Lead Project, is a Driller-cum-Blaster. Respondents 1 and 4 are the Management of the Agnigundala Lead Project and Respondents 2 and 3 its Officers. The Petitioners seek a writ of mandamus directing the Respondents to restore the Petitioner No. 2 herein with full back wages and all other incidental benefits. The Petitioners seek a declaration that Respondents 1 and 4 in general and Respondents 2 and 3 in particular are guilty of breach of settlement dated 25th March 1983 arrived at in the course of conciliation proceedings held on 25th March 1983 at the instanced of Respondent No. 1 and hence they are liable to be punished under Section 29 of the Industrial Disputes Act, 1947 (hereinafter called “the Act”). The Petitioners also seek a declaration that the Respondents are liable for contempt of court.
2. Earlier, Petitioner No. 2 filed W.P. No. 7820/83 which was disposed of by this Court on 15th November 1984. The affidavit filed in the above-mentioned W.P. No. 7820/83 is made part of the record in the present writ petition and that affidavit discloses the relevant facts. It would be pertinent to extract paras 3, 4, 5, 6 and 7 from affidavit :
“. At about 12-30 in the noon 5th December 1982, I was going from the main gate of the project premises. Sri M. G. K. Murty is an Assistant Engineer (Mining) in the project. By the time I went a few yards distanced from the project, the motor cycle on which Mr. M. G. K. Murty came riding with Mr. Radhakrishnaiah on the pinion dashed against me as a result of which I fell down. After getting up, I questioned Mr. M. G. K. Murty about his rash driving. He abused me ‘bastard’, beat me and kicked me. I then gave a report to the Project authorities and also gave report in the Police Station. The police sent me to a Doctor and the Doctor gave certificate for the injuries on my person. Some members of the Management interested in protecting Mr. M. G. K. Murty from prosecution took a report from M. G. K. Murty to the effect that I and another employed Sri Punnayya stopped Mr. M. G. K. Murty while he was proceeding on his motor cycle, abused him and beat him finding fault with him that he got one Sri Rama Murty beaten. The averments in the report are totally false.
On 5th December the Manager (Mining), who is the Head of the Project, placed me under suspension on the basis of Mr. M. G. K. Murty’s report and gave intimation that a domestic enquiry was proposed to be held against me under Clauses (9) and (25) of Standing Order 29 (vide Annexure II). A like order was passed against Sri Punnayya also. In pursuance of the above-mentioned orders an enquiry was held against me and Sri Punnayya by Sri A. J. Reddy, Senior Geologist of the Project. Though the Enquiry Officer did not accept the testimony of Sri Y. Radhakrishnaiah in so far as it related to Sri Punnyya, he has accepted that testimony in so far as it related to me. In the result he found Sri Punnayya not guilty but found me guilty. The evidence against Sri Punnayya and myself was practically the same.
Accepting the report of the Enquiry Officer, the 2nd Respondent herein passed orders on me on 6th March 1983 dismissing me from service. Thereupon, the 2nd Petitioner-Union of which I am a member sponsored my cause and raised a dispute. The dispute was taken up for consideration by the Assistant Commissioner (C) of Labour of Vijayavada in whose jurisdiction the Agnigundala Lead Project is situated and held conciliation proceedings. My cause was sponsored by the 2nd Petitioner. After some sittings, a settlement was arrived at. It was signed by the parties to the dispute and the Assistant Labour Commissioner. A copy of the agreement arrived at is submitted herewith as Annexure I.
As per the agreement it was settled that I could appeal to the 1st Respondent and that the 1st Respondent should in his turn forward the appeal for disposal in 15 days to the Superintendent of Mines. The Management agreed that the punishment to be awarded to me should be other than dismissal, discharge or removal (vide Clause 2 of Annexure I). It was also agreed that I should withdraw the suit O.S. No. 20 of 1983 filed by me in the District Munisif’s Court, Vinukonda against the order dismissing me from service.
An appeal was accordingly submitted by me on 25th March 1983. The appeal was not disposed of in the time limit fixed by the agreement. The conciliation officer enquired about it on a number of occasions. Finally on 23rd July 1983 orders were communicated to me intimating that the Management has altered the punishment from dismissal to “discharge” from service (vide Annexure III).”
The aforesaid facts stated by Petitioner No. 2 in W.P. No. 7820/83 succinctly bring forth the circumstances in which action was taken against the 2nd Petitioner by the 1st Respondent resulting his discharge from service on 23rd July 1983. There is reference in para 5 above-quoted to a settlement arrived at pursuant to the efforts of the Assistant Commissioner of Labour. This settlement is in the form of minutes of discussions held on 25th March 1983 between the Management on the one hand and the Workers’ Union on the other before the Assistant Commissioner of Labour (C), Vijayavada. In the discussions held, the Management was represented by Sri R. N. Sinha, Superintendent of Mines, Sir K. V. Prajanaik, the Mill Manager, Sri C. Srinath, Senior Engineer (Mining) and Sri A. V. Appa Rao, Senior Officer working in the Project. The Union was represented by the President, Vice-President, General Secretary and two Joint Secretaries. As these minutes constitute an important document, it is relevant to extract the same below :
ANNEXURE II
“Minutes of discussions held between the Management of Agnigundala Lead Project and the Hindustan Zinc Workers’ Union before Asst. Labour Commissioner (C), Vijayavada on 25th March, 1983 at Bandalamottu, in connection with the strike which commenced in the Mines on 9th March, 1983 :
Present
Management Representatives :
1. Sri R. N. Sinha,
Superintendent of Mines,
2. Sri K. V. Prajanaik,
Manager (Mill),
3. Sri C. Srinath,
Sr. Engineer (Mining),
4. Sri A. V. Appa Rao
Hindustan Zinc Workers’
Union representatives :
1. Sri Ch. L. Kantha Rao
President,
2. Sri P. C. Ramakrishnayya,
General Secretary,
3. Sri K. Subba Rao,
Joint Secretary,
4. Sri S. E. Murugesan,
Joint Secretary,
5. Sri M. H. Prasad,
Vice-President.
There has been strike w.e.f. 9th March 1983 in Agnigundala Lead Project of M/s. Hindustan Zinc Ltd., Bandalamottu. The conciliation proceedings held by Assistant Labour Commissioner (C) ended in failure on 18th March 1983 and a report to Government has been sent by Assistant Labour Commissioner (C), Vijayavada to all concerned. At this stage, on 25th March 1983, the Management informed Assistant Labour Commissioner (C), Vijayavada that there is a possibility of resolving the issue and, therefore, it requested the Assistant Labour Commissioner (C), Vijayavada to visit the mines immediately, The Asst. Labour Commissioner (C), Vijayavada, therefore, visited Bandalamottu on 25th March, 1983 and held discussions over the issue of the reinstatement of Sri M. Venkateswarlu, Driller-cum-Blaster Assistant, and as a result of which the following understanding is finally reached on 25th March 1983 :
‘1. The Union regretted for what has happened w.e.f. 9th March 1983 and both Union and the Management condemned violence from any corner.
2. Since Sri M. Venkateswarlu, Driller-cum-Blaster Assistant, has not exhausted the provision of appeal, it is agreed that Mr. Venkateswarlu will appeal to the Chairman-cum-Managing Director which, in turn, will be forwarded to the Superintendent of Mines for decision within 15 days. The Management has agreed to award punishment other than dismissal, discharge or removal from service.
3. The Union will call of the strike which commenced on 9th March, 1983 with immediate effect.
4. Such of those employees who have got leave may apply for leave for the period of absence from 9th March 1983 and the Management will sanction the same in case if they are entitled for any leave. In all other cases, the employees will be treated as on L.W.P.
5. In view of this understanding, the employee who filed case in the court of Munsiff Magistrate, Vinukonda and the Management which filed a suit for vacation of injunction order in the court of the Subordinate Judge, Narasaraopet will withdraw the cases.
6. No disciplinary action will be taken against workers who are on strike for their absence.’
Sd/- R. N. Sinha D/ 25-3-83
Sd/- K. V. Prajanaik, 25-3-83
Sd/- C. Srinath, D/ 25-3-83
Sd/- A. V. Appa Rao D/ 25-3-83.
Sd/- Ch. L. Kantha Rao
Sd/- P. C. Ramakrishnayya,
Sd/- K. Subba Rao D/ 25-3-83
Sd/- S. E. Murugesan,
Sd/- M. H. Prasad D/ 25-3-83
Before me
Sd/- K. Ramakrishna,
Asst. Labour Commissioner (C),
Vijayavada.”
3. The Workers’ Union as well as Petitioner No. 2 claim that the order of discharge passed in appeal on 23rd July 1983 is contrary to the settlement reached on 25th March 1983 between the Management and the Union to the effect that appeal would be disposed of awarding a punishment other than dismissal, discharge or removal from service. In as much as the Management passed an order converting the order of dismissal into an order of discharge, there protests and the labour went on strike. While so the Central Government, Ministry of Labour & Rehabilitation (Department of Labour) through its order dated 3rd May 1984 referred “the dispute” for adjudication by the Industrial Tribunal (Central), Hyderabad. It was already pointed out that Petitioner No. 2 filed W.P. No. 7820/83 in this Court and that the Writ Petition was filed challenging the order of Management converting the order of dismissal into an order of discharge. When that writ petition came up for hearing it was brought to the notice of the Court by the learned counsel for the Management that the reference made by the Central Government is pending before the Industrial Tribunal (Central), Hyderabad. Petitioner No. 2, however, claimed that the reference made by the Central Government to the Industrial Tribunal was infructuous in as much as no dispute existed between the Management and the Workmen. Since it was accepted that Petitioner No. 2 would file an appeal and that appeal would be disposed of awarding a punishment other than dismissal, discharge or removal from service, it was urged before this Court that there was an agreement regarding what should be done between the Workmen and the Management and consequently the reference before the Industrial Tribunal under the Industrial Disputes Act would serve no purpose. Even so this Court dismissed the writ petition observing that it is open to Petitioner No. 2 to raise the aforesaid plea before the Industrial Tribunal where the reference is pending.
4. Thereupon, Petitioner No. 2 filed a preliminary objection before the Industrial Tribunal in M.P. No. 7/85 in I.D. No. 36/84 which was pending before the Tribunal. Cutting a long story short it may be mentioned that the Industrial Tribunal upheld the plea that there was no dispute in as much as there is a settlement within the meaning of Section 2(p) of the Act. The Tribunal declared that the understanding or agreement dated 25th March 1983 reached between the Management and the Workmen is clearly a settlement binding the Workmen as well as the Management. In that view, the Tribunal held that reference was bed and not maintainable.
5. After the Tribunal terminated the reference by its order dated 9th September 1985, Petitioner No. 2 sought reinstatement. The Management declined to reinstate him. An Advocate of Narasaraopet served a notice on the Management demanding restoration of Petitioner No. 2 into service with back wages and other benefits. In a communication addressed to the Advocate, the Management said that
“the order passed by the Industrial Tribunal has no statutory sanction behind. It has no force, neither can it confer any rights on your clients”.
The Management claimed that the Tribunal’s findings are merely “observations” which are not binding on the Management. As the Tribunal merely rejected the reference and no award was passed directing reinstatement of Petitioner No. 2, the Management claimed it is not obliged to reinstate Petitioner No. 2.
6. Placed in the above situation, the Union filed before the Industrial Tribunal M.P. No. 14/86 seeking action to ensure restoration of Petitioner No. 2 to service. The Industrial Tribunal disposed of the aforesaid M.P. No. 14/86 on 15th January 1986 stating :
“The workers and their counsel may take appropriate action in the given circumstances and as the Tribunal is not the implementation authority, I can only forward his application to the Hon’ble High Court as and when the records are called for”.
The application referred to is one filed by the Union to instruct the Advocate-General to initiate contempt proceedings against the Management and the Respondents 2 and 3 herein.
7. Therefore, the Petitioners applied to the Registrar (Judl). of this Court seeking instructions to the Advocate-General to institute contempt proceedings against the Management and other Respondents. The Registrar (Admn). disposed of that application on 5th March 1986 stating :
“No action for contempt proceedings on administrative side can be taken on the letter filed by Advocate. Hence the papers are returned”.
It was then that the present writ petition is filed by the Petitioners seeking reliefs already referred to.
8. Sri C. Suryanarayana, learned Counsel for the Petitioners, basically relied on the settlement reached on 25th March 1983 between the Management represented by its officers and the Workers’ Union and contended that the Management was clearly in error in not implementing the settlement or understanding. Learned Counsel submits that the Management played fraud on the Union and the Workmen. It is pointed out that when initially an order of dismissal was passed by the Superintendent (Mines) on 6th March 1983 following a domestic enquiry, there was a strike by all the workers w.e.f. 9th March 1983, the Management found itself in a helpless position and referred the matter to the Asst. Labour Commissioner for conciliation. The Asst. Labour Commissioner (Central), Vijayavada reported that conciliation proceedings failed. Seeing that there was tremendous labour unrest, the Management invited the Asst. Labour Commissioner stating that there is a possibility of resolving the issue. This is fully borne out by the minutes recorded on 25th March 1983. In order to see that the workmen went back to duty and the strike was called off, a promise was held out by the Management that if Petitioner No. 2 filed an appeal for exhausting the departmental appeal remedy available, the Management would award punishment other than dismissal, discharge or removal from service. The Union as well as the workmen relied on the honest implementation of the understanding but the Management went back on the same. Learned Counsel submitted that the understanding reached on 25th March 1983 is a settlement within the meaning of Section 2(p) of the Act and the Central Government could not have, therefore, referred any alleged dispute for adjudication by the Industrial Tribunal. It is submitted that the Tribunal was right in terminating the reference on the ground that no dispute existed between the Management and the Workmen. Learned Counsel reiterated his plea that the Respondents-Management should be directed to implement the understanding or settlement reached on 25th March 1983.
9. Sri K. Srinivasa Murty, Learned Counsel representing the Respondents-Management, sought to justify the action taken by the Management by advancing a number of technical pleas. It is contended that the officers of the Management who negotiated for a settlement and who signed on the minutes of understanding on 25th March 1983 have no right to reach that understanding and make a commitment that if an appeal is filed before the Chairman-cum-Managing Director, Petitioner No. 2 would be awarded a punishment other than dismissal, discharge or removal from service. It is submitted that the officers have no right to prejudge the action that would be taken by the Chairman-cum-Managing Director and consequently the minutes cannot bind the Management. That being so, it is said that a dispute between the Workmen and the Management existed and the Industrial Tribunal should have been allowed to deal with the dispute without the Union and the workmen frustrating that reference by raising a preliminary plea that the reference was infructuous. It is alleged that the agreement or the understanding dated 25th March 1983 is not a settlement within the meaning of Section 2(p) of the Act the consequently the Industrial Tribunal should have addressed itself to the adjudication. As the Industrial Tribunal terminated the reference, according to the learned counsel, illegally, nothing further remains to be done by the Management. It is contended by the learned counsel that there is no Award passed by the Industrial Tribunal directing the reinstatement of Petitioner No. 2 and consequently no allegation can be made that the Respondents-Management committed error in not giving effect to the Award of the Industrial Tribunal. Learned Counsel also referred to an additional counter filed by the Respondents-Management claiming that the matters in dispute relate to contractual relationship between the parties and this Court cannot, therefore, exercise jurisdiction under Article 226 of the Constitution of India.
10. Two questions arise for consideration based on the facts stated above. They are :
(a) Whether the minutes of the discussions dated 25th March 1983 constitute a “settlement” within the meaning of S. 2(p) of the Industrial Disputes Act; if the answer is in the negative whether the matter should go back to the Industrial Tribunal for purpose of adjudication pursuant to the reference made in I.D. No. 36/84 ?
(b) Even if the minutes of discussions dated 25th March 1983 cannot be considered to be a “settlement” within the meaning of S. 2(p) of the Act, is the Management bound by the minutes and the same can be enforced independent of any adjudication of dispute by the industrial Tribunal ?
11. Learned Counsel for the Respondents, Sri Srinivasa Murty, urges that the minutes of discussions dated 25th March 1983 cannot be held to be ‘settlement’ within the meaning of S. 2(p) of the Act. In order to appreciate the contention of the learned counsel, Section 2(p) may be extracted below :
“S. 2(p) : “Settlement” means a settlement arrived at in the course of a conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding 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”,
Sri Srinivasa Murty points out that Petitioner No. 2 was initially dismissed from service by order dated 6th March 1983. As a protest, the labour struck work from 9th March 1983. The matter was referred for conciliation purposes to the Asst. Labour Commissioner (C), Vijayavada. After discussions with parties, the Asst. Labour Commissioner reported failure; the conciliation proceeding came to an end. After the Labour Commissioner sent his report of failure, there was again a flare up and the labour struck work. There was some informal discussions between the Management and the Union and it looked as though the matter could be resolved to the mutual satisfaction of the Management and the Workmen. It was in that context that on 25th March 1983, the Management informed the Asst. Labour Commissioner that there was a possibility of resolving the issue and, therefore, the Commissioner was requested to visit the mines immediately. Responding to the request the Labour Commissioner visited the mines on 25th March 1983, held discussions with the Management and the workers’ Union on the issue of reinstatement of Petitioner No. 2 as a result of which certain understanding was reached which was reduced to writing by way of minutes. The above facts are borne out the minutes recorded on 25th March 1983.
12. On these facts, it is contended that the ingredients of a “settlement” for the purpose of S. 2(p) of the Act are not satisfied. It is contended that the settlement evidenced by the minutes was not arrived at in the course of conciliation proceeding, because by that time the Asst. Labour Commissioner reported failure of the conciliation proceeding. According to the learned counsel, the so called “settlement” was reached after the conciliation proceedings ended, but not in the course of conciliation proceeding. The settlement must be considered to have been arrived at otherwise than in the course of conciliation proceeding as specified in S. 2(p) of the Act. Learned counsel submits such an agreement has to be signed by the parties in the manner prescribed and copy of that agreement has to be sent to an officer authorised in that behalf by appropriate Government and the conciliation officer. Learned counsel urges that the requirements specified in the latter part are not satisfied because the agreement is not in the prescribed form nor has it been sent to the persons specified. Attention is invited to Rule 58 of Industrial Disputes (Central) Rules, 1957, which provides that the Memorandum of Settlement, arrived at in the course of conciliation proceeding or otherwise, shall be in Form ‘H’. It is also pointed out that copies of Form ‘H’ have to be sent, according to Rule 58, to the Asst. Labour Commissioner (Central) of the local area concerned, Regional Labour Commissioner (Central), Chief Labour Commissioner (Central), New Delhi and the Secretary to Government of India, Ministry of Labour, New Delhi. Learned counsel points out that the settlement arrived at between the parties and evidence by the minutes of discussion is not in the form prescribed and the copies of the prescribed form have also not been sent to the parties concerned. It is urged by the learned counsel that the minutes drawn up cannot themselves be considered to be a “settlement” for the purpose of S. 2(p) of the Act. There is a bar against making a reference for adjudication by the Industrial Tribunal if the settlement is arrived at between the employed and the workmen satisfying the requirements of S. 2(p) of the Act. If the requirement for a valid settlement are not satisfied, it must be held that there is no settlement in the eye of law and consequently a reference of the dispute between the employed and the workmen is liable to be referred to the Industrial Tribunal. Learned Counsel submits that in the present case the reference was made to the Industrial Tribunal because there is no valid settlement satisfying the requirement of S. 2(p) of the Act and the Industrial Tribunal was in error in accepting the contention of the Petitioners that the minutes of the discussions dated 25th March 1983 represent a valid settlement and consequently no dispute exists. Learned counsel submits that the termination of the reference by the Industrial Tribunal is grossly erroneous. Learned counsel further urges that on the facts and circumstances, it must be held that there is no valid settlement satisfying the requirements of S. 2(p) of the Act and consequently the dispute should go back to the Industrial Tribunal for adjudication. Learned Counsel also claims that the Industrial Tribunal which terminated the reference did not pass any Award for reinstatement of Petitioner No. 2 and consequently the question of Management complying with the Award does not arise.
13. I am unable to accept any of the aforesaid contentions raised by the Learned Counsel for the Respondents. The conciliation officer does not become functus officio the moment he submits a failure report. The fact that the conciliation officer reported under S. 12(4) of the Act failure of the conciliation proceeding will not debar him from making further efforts to bring about a settlement between the Management and the Workmen. There is no such prohibition in the Act. Indeed if one bears in mind the object of initiating conciliation proceedings, it is the duty of the conciliation officer to do his best to find a settlement between the employer and the workmen even though he formally submits a failure report under S. 12(4) of the Act. Nothing prevents him from continuing the process of conciliation even after a report regarding the failure is furnished. He may do such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. If, after submission of the report to the Government, the parties approach him or if he feels that the parties are in a mood to relent or reconcile, it would be perfectly open to him to initiate fresh conciliation proceedings for bringing about a settlement of the dispute between the parties. This is precisely what happened in this case. After the conciliation officer submitted his failure report to the Government and there was a flare up in the Project area by the reason of the employees’ strike, the Management itself conducted informal negotiations and requested the conciliation officer to go over to the Mines so that a settlement could be negotiated. The efforts made by the conciliation officer to evolve a settlement between the management and the workmen resulted in mutual agreement and the agreement was put on record by way of minutes signed by both sides. In my opinion, the settlement reached in 25th March 1983 is “in the course of conciliation proceedings”. I derive support for the above view from the decision of this Court in Praga Tools Ltd. v. Praga Tools Ltd., Mazdoor Sabha (1975-I-LLJ-218) Learned counsel for the Respondents had not drawn my attention to any decision which would support his submission that once the conciliation officer reports failure of the conciliation proceedings, any agreement arrived at subsequently through the good offices of the Conciliation Officer could not be said to be a “settlement in the course of conciliation proceedings”.
14. Even assuming for the sake of arguments that the agreement was arrived at after the conciliation proceedings ended, still S. 2(p) provides that every written agreement between the employer and the workmen arrived at otherwise than in the course of conciliation proceedings should be regarded as a settlement, provided it has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate Government and the Conciliation Officer. Now in the present case the minutes recorded on 25th March 1983 were duly signed by four representatives of the employer and the office bearers of the Union. The only criticism is that the written agreement is not in the prescribed form ‘H’ and a copy thereof has not also been sent to the officers concerned. A perusal of Form ‘H’ would show that the names of the parties representing the employer and the workmen should be specified therein; a short recital of the case must be given; the terms of the settlement should be indicated and then the parties should sign. There must be attestation by witnesses. Copies of that form should be sent to the Assistant Labour Commissioner (Central), Chief Labour Commissioner (Central) and the Secretary to Government of India, Ministry of Labour. Now the minutes recorded substantially comply with these requirements. The names of the parties representing the employer and the workmen are specifically stated therein. Not merely a short but a detailed recital of the case was given. The terms of settlement were clearly indicated in the minutes. On behalf of the employer four senior officers signed. On behalf of the workmen five office bearers of the Union signed. The Assistant Labour Commissioner (Central), Vijayavada, Sri K. Ramakrishna, himself signed as a witness. The minutes of the discussions thus comply substantially with the form prescribed except that it is described as Form ‘H’. There is no substance in the criticism that the minutes are not in the prescribed form when the contents of the minutes wholly conform to the requirements. This contention is, therefore, rejected.
15. The next criticism is that copies of the minutes were not forwarded to the officers concerned. It is clear that the minutes were drawn up in the presence of Sri K. Ramakrishna, Asst. Labour Commissioner, Vijayavada, as clearly indicated in the minutes of discussions. It must, therefore, be held that a copy were duly forwarded to the Assistant Labour Commissioner (Central) of the local area concerned. As regards copies to the Regional Labour Commissioner (Central), Chief Labour Commissioner (Central) and the Secretary to the Government of India, Ministry of Labour, there is no authentic information on record that these minutes were not communicated to the respective parties by the Assistant Labour Commissioner at whose instance the minutes were drawn up. Even assuming that there is failure to do so, in my opinion it is not fatal to the validity of the settlement reached at the instance of the Assistant Labour Commissioner. It must be borne in mind that transmission of copies to higher authorities is merely a procedural requirement to keep them informed of the development in any dispute concerning the employer and the workmen. So long as the Assistant Labour Commissioner, who is the conciliation officer, is seized of the matter and the settlement was reached at his instance and was duly attested by him, the omission to transmit copies of the Memorandum of Settlement to the higher authorities does not, in my opinion, invalidate the settlement. In any event, I am unable to accept the plea that the transmission of copies should be held to be a mandatory requirement for the validity of the settlement. On the clear terms of S. 2(p) of the Act read with Rule 58, it is clearly directory.
16. In view of my above findings, it must be held that the minutes of discussions dated 25th March 1983 constituted a valid settlement within the meaning of S. 2(p) of the Act in either view of the matter. It is a valid settlement because the agreement was arrived at in the course of conciliation proceedings. It is also valid because it was arrived at otherwise than in the course of conciliation proceedings and the requirements of S. 2(p) of the Act are satisfied. The Industrial Tribunal’s view that the minutes of discussions dated 25th March 1983 constituted a valid settlement within the meaning of S. 2(p) of the Act is accordingly upheld. The settlement is clearly binding on the employer and also the workmen.
17. It is well settled by a long catena of decisions of the Supreme Court and also of High Court(s) that no party bound by the settlement can raise an industrial dispute during the currency of the settlement and a reference of such industrial dispute would be illegal and inoperative. The Industrial Tribunal was, therefore, justified in terminating the reference as illegal.
18. The above findings are sufficient to dispose of the matter. Learned counsel for the Respondents was very strenuous in his argument that minutes of discussions dated 25th March 1983 do not constitute a valid settlement within the meaning of S. 2(p) of the Act. Assuming that this contention is correct, still it cannot be said that the Management is not bound by the non-statutory settlement arrived. The facts copiously stated by me already would clearly show that as soon as the Conciliation Officer reported failure of the conciliation proceedings, the workmen struck work and the Management found itself in a difficult position. It is clear from the events that the Management entered into some kind of dialogue with the Union and saw a possibility of a settlement being arrived at. The Management solicited the good offices of the Assistant Labour Commissioner to go to the Mines and negotiate for a settlement as there was a possibility of resolving the dispute. Senior officials of the Management took part in the negotiations conducted by the Assistant Labour Commissioner. Sri R. N. Sinha is the Superintendent of Mines who himself passed the order of dismissal of Petitioner No. 2. Sri K. V. Prajanaik is the Mill Manager and Sri C. Srinath is the Senior Mining Engineer. Sri A. V. Appa Rao is also a senior officer. These four officers signed the minutes of discussions dated 25th March 1983 representing the Management. The contention comes with ill grace from the Management that these four Officers who negotiated for a settlement acted without authority in accepting that the Management would award to Petitioner No. 2 a punishment other than dismissal, discharge or removal from service. The sequence of events would undoubtedly show that these high officers were representing the Management and were fully instructed by the Chairman and the Managing Director whose primary responsibility is to bring about industrial peace. It is extraordinary that the Management should raise a contention that these four officers representing the Management who signed the minutes of discussion on 25th March 1983 acted outside their authority and, therefore, the minutes of discussions are not binding on them. There are valid grounds to think that the four officers acted at the behest of the Chairman and the Managing Director and the Management was fully conscious and aware of the implications of the settlement reached on 25th March 1983. Having secured peace (the strike having been called off and the legal cases in courts having been withdrawn), the Management made a somersault and tried to resile from the agreement in regard to the punishment to be awarded to Petitioner No. 2. Undoubtedly, the Management acted vindictively. In my opinion, the Management committed breach of settlement arrived at on 25th March 1983. I have also no hesitation in holding that this breach occurred because the Chairman of the Company declined to act upon the settlement arrived at by the four officers representing the Management. It is for the Labour Commissioner to take action as he may consider appropriate under S. 29 read with S. 32 of the Act.
19. In the facts and circumstances, I am unable to uphold the contention that any contempt of the court is involved in the matter. I cannot, therefore, accept the Petitioners’ plea that the Respondents are liable for contempt of Court.
20. An additional counter is filed by the Respondents to the effect that this court cannot exercise jurisdiction under Art. 226 of the Constitution on the ground that the relationship between the employer-company and the workmen is contractual and this court cannot, therefore, intervene in the matter. It should be remembered that the Respondent-Company is a wholly-owned Government of India Undertaking and is clearly a ‘State’ within the meaning of Art. 12 of the Constitution. The actions of the Management are liable to be questioned by the workmen on the ground of arbitrariness, violating Article 14 of the Constitution. It is not open to the Respondent-Company to claim that the relationship between the Management and the workmen being contractual, this Court cannot exercise jurisdiction under Article 226 of the Constitution. This position is fairly settled in law, vide the decisions of the Supreme Court in R. D. Shetty v. International Airport Authority (1979-II-LLJ-217). Ajay Hasia v. Khalid Mujib Sehravardi & Others (1981-I-LLJ-103), Central Inland Water Transport Corporation v. Brojanath Ganguly (1986-II-LLJ-171) and O. P. Bhandari v. Indian Tourism Devt. Corpn. and others (1986-II-LLJ-509). The following observations of Bhagawati, J. (as he then was) in Ajay Hasia’s case (1981-I-LLJ-103 at 109) are pertinent :
“The Government in many of its commercial ventures and public enterprises is resorting more and more frequently to this resourceful legal contrivance of a Corporation because it has many practical advantages and at the same time does not involve the slightest dimunition of its ownership and control of the Undertaking. In such cases the true owner is the State, the legal operator is the State and the effective controllerate is the State and accountability of its actions to the community and to the Parliament is of the State.”
The learned Judge further observed at p. 110 :
“If a Corporation is found to be a mere agency or surrogate of the Government, in fact owned by the Government, in truth controlled by the Government and in effect an incarnation of the Government”, the Court must not allow the enforcement of fundamental rights to be frustrated by taking the view that it is not the Government and, therefore, not subject to the Constitutional limitation”.
21. The Respondent-Company, as observed above, is wholly-owned Government of India Undertaking; it should set an example as a model employer and should not behave in an arbitrary manner violating the constitutional rights of workmen under Article 14 of the Constitution. I regret to say that the conduct of the Respondent-Company in this case calls for severe condemnation as a wholly arbitrary view is taken that a settlement taken at the behest of the Management with the Union on 25th March 1983 is not binding on the Company. The consequence was that during the past four years the workman who has been denied his legitimate rights was driven from pillar to post to secure justice. It is surprising that on grounds of contractual relationship the Respondent-Company should canvass the plea that this Court cannot exercise jurisdiction under Article 226. The contention is wholly misconceived and is accordingly rejected.
22. In the result, the order dated 23rd July 1983 bearing No. 1(4)/82(IR)/3053 of the 1st Respondent is set aside. The 1st Respondent is directed to pass a fresh order within two weeks from the date of receipt of a copy of this order in terms of the settlement arrived at on 25th March 1983. As no order of dismissal, discharge or removal can be passed in terms of the settlement, Petitioner No. 2 shall be reinstated within one week from the date of receipt of a copy of this order. Petitioner No. 2 shall be entitled to claim continuity of service and all consequential benefits, monetary and otherwise, as if he continued to be in service right from the date when he was dismissed from service. An account of the moneys due to Petitioner No. 2 shall be made up on the above basis and the moneys, if any already paid by way of wages to Petitioner No. 2 shall be deducted and the balance quantified shall be paid within two weeks from the date of receipt of a copy of this order.
23. The writ petition is allowed to the extent indicated above. This is a case where the 1st Respondent-Management should pay Petitioner No. 2 exemplary costs. The 1st Respondent shall accordingly pay to Petitioner No. 2 costs assessed at Rs. 2,000/- within seven days from the date of receipt of a copy of this order.