JUDGMENT
1. This petition is filed to quash an order of the 1st respondent (the Union of India) declining to refer for adjudication under the Industrial Disputes Act, 1947, a dispute raised by the petitioner.
2. The petitioner is a registered trade union representing the workmen of the 2nd respondent (the Trustees of the Port of Bombay). On 25th May 1981 the petitioner served upon the 2nd respondent a notice of strike on and after 10th June, 1981 for the reasons mentioned in the annexure thereto. The annexure listed twelve demands made by the petitioner.
3. Conciliation proceedings ensured. On 5th March, 1981 the Conciliation Officer made a failure report to the 1st respondent, the appropriate Government. He stated that an understanding had been reached between the parties in respect of demands Nos. 5, 6, 7, 11 and 12 and that no understanding had been arrived at in respect of the remaining demands, i.e., demand Nos. 1, 2, 3, 4, 9 and 10. The failure report noted that the main cause for the failure was that the 2nd respondent was not agreeable to re-open discussions on the ground that settlement had been arrived at on 4th January, 1981 between the 1st respondent and four federations of workmen operating in major ports, which settlement had been accepted by a majority of the workmen.
4. On 4th November, 1981 the 1st respondent passed the impugned order. It needs to be set out in full.
“In continuation of this Ministry’s letter of even number dated the 14th August, 1981, on the subject mentioned above, I am directed to say that demands Nos. 1, 2, 3, 4, 9 and 10 appear to be covered by the settlement dated the 4th January, 1981 signed by the Government of India and the Federations of Port and Dock Workers leading to revision of wages and liberalisation of certain terms and the conditions of employment of port and dock workers at the major ports, which has been accepted by a majority of workers. Subsequently, in pursuance of a supplementary settlement signed on 26th February 1981, between the Government of India and the Federations of Port and Dock Workers, the question whether the arrears on account of certain items including payment for overtime work and night weightage are payable from 1st January 1980 (1st April 1980 in the case of employee of New Mangalore Port) or from the date of signing of the settlement i.e., 4th January, 1981 was referred for arbitration on 10th August 1981, by the Ministry of Shipping and Transport. The award of the arbitrators is awaited. In view of this, the Central Government have decided not to refer the dispute for adjudication.
5. The settlement dated 4th January, 1981 (now called “the said settlement”) upon the basis of which reference was declined was arrived at between the 1st respondent and All India Port and Dock Worker’ Federation, Indian National Port and Dock Workers’ Federation, Port Dock and Water Transport Workers’ Federation of India and Water Transport Workers’ Federation of India. The first-named federation is the 3rd respondent.
6. The said settlement dealt with the issue of wage revision and liberalisation of the terms and conditions of employment of port and dock workers at major ports. Clause 28 of the agreement provided that, during its currency, no demand relating to what was settled by it would be raised by inter alia, any employee covered by it who had received any benefit under it or by any union of such employees.
7. Some provisions of the Industrial Disputes Act must now be referred to.
8. The second proviso to sub-section (1) of Section 10 provides that where a dispute relates to a public utility service (which the 2nd respondent admittedly is) and a notice under Section 22 (a strike notice) has been given, the appropriate Government shall unless it considers that the notice has frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section. Section 12(5) obliges the appropriate Government, if, on consideration of a failure report, it is satisfied that no reference is called for to record and communicate to the parties concerned its reasons for not making the reference.
9. Section 2(p) defines a settlement for the purposes of the Act to mean a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and the 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.
10. The said settlement is not a settlement as defined by the Act.
11. Dr. Kulkarni, learned Counsel for the petitioner, submitted first that the impugned order made no reference to demand Nos. 5 to 8, 11 and 12 made by the petitioner. His submission is, in any event, a reference in respect of these demands was obligatory. This submission cannot be accepted because an agreement in respect of these items was arrived at before the Conciliation Officer. The impugned order covered only the remaining demands.
12. Analysing the impugned order, one finds that a reference of the dispute for adjudication was declined by the 1st respondent because (a) the remaining demands were covered by the said settlement, and (b) the said settlement had been accepted by a majority of the workmen.
13. In the affidavit of one Shankarlingam, Deputy Secretary, Ministry of Shipping and Transport of the 1st respondent, it is said that the existence of the said the settlement, the binding nature of a resolution of the 2nd respondent ratifying the same, and the acceptance of benefits thereunder by the 2nd respondent’s workmen were the circumstances which made a reference inexpedient, improper and illegal.
14. It was submitted by Counsel for the respondents that the 1st respondent deemed it inexpedient to make the reference because it would create unrest and unsettle conditions in major ports all over the country. It is not possible to accept this submission. To do so would be to step beyond the impugned order.
15. The impugned order does not indicate that the 1st respondent realised that the said settlement was not a settlement within the meaning of that word in the Act. More importantly, the impugned order states that the said settlement had been accepted by a majority of the 2nd respondent’s workmen. The impugned order does not indicate the basis upon which it could state that the said settlement had been accepted by a majority of the 2nd respondent’s workmen. It was argued on behalf of the respondents that this statement was made on the basis of what was contained in the failure report. The failure report only sets out the 2nd respondent’s contention that the said settlement had been accepted by a majority of the 2nd respondent’s workmen. It must, therefore, be concluded that the 1st respondent declined to make the reference only because the 2nd respondent said that the said settlement had been accepted by a majority of its workmen.
16. It was argued on behalf of the respondent that a majority of the 2nd respondent’s workmen had, in fact, accepted the terms of the said settlement for all but two or three had signed an undertaking which reads thus :
“WHEREAS the Bombay Port Trust (BPT) has agreed to pay the arrears of pay and allowances as per the settlement arrived at on 4th January, 1981 between the Government of India and All India Port and Dock Workers’ Federation, Indian National Port and Dock Workers’ Federation, Port Dock and Waterfront Workers Federation of India.
NOW THEREFORE I declare and agree that I shall abide by the terms of the Settlement dated 4th January, 1981 and 26th February, 1981″.
17. In regard to this undertaking the affidavit of G. S. Mathkar made on behalf of the 2nd respondent says that all the 2nd respondent’s workers except 6 had accepted the terms of the said settlement prior to the submission of the failure report. One of the 6 workmen had since died, and 3 had given the undertaking subsequently. Only two workmen had not signed the undertaking.
18. There is nothing to indicate that, at the time when the impugned order was passed, the 1st respondent was aware of any undertaking signed by the 2nd respondent’s workmen. In the affidavit made on behalf of the 2nd respondent no particulars are given as to the language in which the undertaking was obtained from the workmen, as to whether the undertaking was explained to the workmen before they signed or put their thumb-impressions upon it and as to whether the workmen were made aware of the said settlement and, particularly, of clause 28 thereof, before they signed the undertaking or placed their thumb-impressions upon it.
19. Mr. Dwarkadas, learned Counsel for the 2nd respondent, upon instructions, told me that the undertaking upon which the workmen had signed or placed their thumb-impressions was in English. He did not have the instructions to state whether the undertaking of the said settlement had been explained to the workmen before they signed or placed their thumb-impressions on the undertaking.
20. In the circumstances, I am far from satisfied that the workmen consciously accepted the terms of the said settlement. It is more probable that they signed the undertaking only to obtain the benefits conferred by the said settlement. In Tata Engineering and Locomotive Co. Ltd. v. Workmen, (1981-II-LLJ-429), the Supreme Court held that a mere acquiescence in a settlement or its acceptance by workers would not make them a party to the settlement.
21. The 1st respondent has signed the said settlement. The 1st respondent is also the appropriate Government which must decide whether or not a reference should be made. This being a service industry, the 1st respondent could have declined to make reference only if the notice of strike had been frivolously or vexatiously given, which is not the case, or if it considered it inexpedient to make a reference. A very strong case of inexpediency would have, in the circumstances, to be made out. It is not made out.
22. It would be possible to urge in a given case that where the only grounds for refusing a reference have been found to be unsustainable, the Court should direct the appropriate Government to make a reference. I do not propose to follow that course having regard to the circumstances of this case. I shall direct that the 1st respondent shall reconsider the matter and shall do so in depth and upon relevant and germane considerations.
23. The petition is made absolute in terms of prayer (a). The 1st respondent shall reconsider the petitioner’s notice dated 25th May, 1981 on merits and shall, in depth and upon relevant and germane considerations, decide under Section 10(1) of the Act whether or not a reference should be made. Should it decide not to make a reference, it shall record the reasons for so deciding under Section 12(5).
24. The 1st respondent shall pay to the petitioner the costs of the petition.
25. Rule accordingly.