JUDGMENT
Dipak Prokash Kundu, J.
1. In this writ proceeding the writ petitioners have challenged a letter dated 14th November, 2000 issued by the Deputy General Manager (Personnel) for Garden Reach Shipbuilders and Engineers Ltd. (a Government of India Undertaking). The relevant part of the aforesaid letter dated 14th November, 2000 is set out hereunder :
“The President GRW
Ltd. Clerk’s Union, 43/46, Garden
Reach Road, Calcutta-700 024.
Re. : Termination of Agreement dated 9th May, 1988
Dear Sir,
The Management is regretfully constrained to give you notice hereby that due to supervening impossibility, the Agreement dated 9th May, 1988 shall stand terminated with effect from 15th January, 2001.
Yours faithfully, For Garden Reach
Shipbuilders & Engineers Ltd.
Sd/- (illegible)
Dy. General Manager (Personnel)”
2. There are three petitioners. Petitioner No. 1 is a registered trade union. It is the case of the petitioners that the petitioner union and the respondent company on 9th May, 1988 signed a Memorandum of Settlement, within the meaning of Section 2(p) of the Industrial Disputes Act, 1947, on incentive scheme for clerical graded staff after replacing the scheme prevailing at that material time.
3. In Clauses 5.12 of the aforesaid incentive scheme dated 9th May, 1988 it was stated that as a special gesture of goodwill the management agreed to pay all clerical graded staff/employees for the period of 1.6.1987 to 30.4.1988 additional incentive by lowering qualifying level applicable to such employees of overall GRSE efficiency of 50% to 45% only. In Clause 6.1 of the aforesaid incentive scheme dated 9th May, 1988 it was clearly stated that the scheme would be put into operation on and from 1.5.1988 and in Clause 6.2 it was stated that the scheme would be binding on the parties upto 31.12.1989 and the scheme would continue even thereafter till a new agreement is signed.
4. It is the case of the petitioners that after the aforesaid incentive scheme no further agreement was made on the incentive scheme. It is the case of the petitioners that the terms of the said incentive scheme continued upto
30.10.2000 without any change or reduction of wages. In paragraph 5 of the writ petition the writ petitioners narrated how the clerical graded staff of the respondent company are getting incentive. The relevant part of paragraph 5 is set out hereunder :
“It is stated that on the basis of the said Incentive Scheme dated 9th May, 1988, all the employees/workmen of the respondent Company are getting incentive in the manner as stated hereunder :-
Incentive for 25 days i.e. 200 normal hours worked
Particulars
Grade-I
Grade-II
Grade-III
5.3.3.1
Based on average of related production group
Rs. 180.00
Rs. 150.00
Rs. 120.00
5.2.3.2
Direct performance
Rs. 420.00
Rs. 350.00
Rs. 280.00
5.3.3.3
Total incentive earnings
Rs. 600.00
Rs. 500.00
Rs. 400.00
5.3.4
Incentive based on average earnings of Direct operatives.
5.3.4.1
Incentive earning for 200 normal hours worked in respect
of Clerk Grade-II on this account will be 150x(E-40)/60 where is the efficiency of the direct operatives of the related shops/department etc.”
5. In paragraph 6 of the writ application the writ petitioners stated that a settlement was made on 6th September, 2000 and as per provision of Rules 68 of the West Bengal Industrial Disputes Rules the settlement was duly communicated by the parties to the Labour Commissioner. Government of West Bengal for his recording. In the said settlement dated 6th September, 2000 under Clause 10 it has been agreed by and between the parties that the existing benefits and facilities not covered by the settlement dated 6th September, 2000 will remain unchanged and the amount of Rs. 280/- paid per month for the year 1996 and Rs. 390/- paid per month from 1.1.1997 as interim relief shall be fully recovered and adjusted with the arrear payment and any other advance or ad hoc payments made against the said wage settlement dated 6th September, 2000 shall also be recovered and adjusted with the arrear payments.
6. The Chief General Manager (Personnel) for Garden Reach Shipbuilders and Engineers Ltd. by a letter dated 30.10.2000 intimated the President of the petitioner No. 1 that in accordance with Section 9A of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act) it was the intention of the company to effect the change specified in the annexure to the said letter with effect from 12th December, 2000. In the annexure to the said letter it was stated as follows :-
“1. The norms set in the Agreement dated 9th May, 1988 relating to Incentive scheme for Clerical Graded Staff is totally outdated and not workable and hence cannot have any impact so far as performance is concerned.
2. The Company, therefore, proposes to discontinue the Incentive Scheme permanently as formulated in the Agreement dated 9th May, 1988.”
7. After receiving the aforesaid letter dated 30th October, 2000, the President of the petitioner No. 1 by a letter dated 3rd November, 200.0, inter alia, intimated that (a, the proposal for withdrawal of the Incentive Scheme was in contravention of Clause 6.2 of the Agreement dated 9th May, 1988, (b) without offering any alternative proposal to protect the interest of the workmen as well as the Company drastic deduction of wages would put the workmen in great difficulty, (c) without making any supplementary agreement the management cannot withdraw the benefits granted to the workmen by the aforesaid incentive scheme dated 9th May, 1988. The respondent company by the letter dated 14th November, 2000 terminated the incentive agreement dated 9th May, 1988. The relevant part of this letter dated 14th November, 2000 has already been set out in the earlier part of this judgment.
8. The respondent Nos. 1, 2 and 3 in their affidavit-in-opposition, in paragraph 13, inter alia, stated that (a) what was arrived at on 9.5.1988 is not a settlement as contemplated under the said Act but merely an agreement, (b) under Section 2(p) of the said Act a written agreement between the employer and workmen arrived at otherwise than in course of conciliation proceeding, for elevation to the status of settlement, requires to be signed by the parties thereto in such a manner as may be prescribed and a copy thereof is required to be sent to an officer authorised in this behalf by the appropriate Government and the Conciliation Officer, (c) the agreement dated 9.5.1988 is not a settlement within the meaning of Section 2(p) of the said Act because the second condition of jointly sending copy thereof to an officer authorised in this behalf by the appropriate Government and the Conciliation Officer was not complied with.
9. In paragraph 15 of the affidavit-in-opposition respondent Nos. 1, 2 and 3 stated that it is apparent from the aforesaid Incentive Scheme itself that it was not just like a benefit or facility but the payment was conditional upon achievement of certain targets and norms of production and productivity and had inseverable correlation with production groups. In the said paragraph 15 the respondent Nos. 1, 2 and 3 stated about (a) Performance Criteria and report of Clerks, (b) Performance Criteria for Stenographer/Steno-typist and (c) Overtime work. The relevant part of the said paragraph 15 is set out hereunder :
(a)
Performance Criteria and report of Clerks :
Slippage
Performance
Factor
Slippage
Performance
Factor
Occasions
No. of
days
Occasions
No. of days
0
0
1.0
1
5
1
1
0.9
2
4
1
2
3
3
0.0
2
1
0.8
4
2
1
3
5
1
2
2
3
0
0.7
1
4
2
3
3
2
4
0
0.5
(b) Performance Criteria for Stenographer/Steno-typist
Performance
Criteria
Performance
Factor
Excellent
1.0
Very
good
0.9
Good
0.8
Fair
0.7
Satisfactory
0.5
Unsatisfactory
Nil (0.0)
(c) Overtime work:-
If a clerical grade staff works on overtime more than 5% his incentive bonus earning will be reduced accordingly. For overtime work more or equal to 15% his incentive bonus earning will be nil.
O.T. is given since the clerk did not complete his work in normal time.
It is, therefore, apparent that such incentive scheme cannot come within the purviewed benefits of facility as wrongly sought to be contended.
10. In the paragraph 17 of the affidavit-in-opposition respondent Nos. 1, 2, and 3 stated that the Settlement dated 6th September, 2000 has nothing to do so far as incentive agreement is concerned. It has also been stated in the said paragraph 17 that the letter dated 30th October, 2000 had been correctly issued. Said paragraph 17 of the affidavit-in-opposition of respondent Nos. 1, 2 and 3 is set out hereunder :-
“17. The contentions sought to be put forward in paragraph 7 of the said Application are denied and disputed. The settlement dated 6th September, 2000 has nothing to do so far as Incentive Agreement is concerned. The Incentive Agreement is a separate agreement and as would appear from the agreement itself that the same is production oriented and cannot in any manner come under the purview of existing benefit or facility. The letter dated 30th October, 2000 has been correctly issued. First, the Incentive Scheme is correlated with production incentive of operatives which stand withdrawn. Secondly, due to procedural/ system change in the working of different Departments/Shops from time to time, the working schedule and work norms of clerical oriented have undergone wide changes during the year after implementation of incentive schemes. Thirdly, due to mechanisation through use of electronic equipments, installation of P.C. alongwith LAN connection, use of CAD etc. there have been changes of norms in respect of clerical workload. Fourthly, implementation of Electronic card attendance system has greatly reduced the Clerical work load of Time Office. Fifthly, the new order position of the Company is almost nil and the existing orders are mostly in near completion stage. Consequently, a large number of workers are being paid idle wages.”
11. In paragraph 20 of the affidavit-in-opposition, the respondent Nos. 1, 2 and 3 stated that firstly, what was sought to be terminated was not a settlement but an agreement, secondly, the incentive scheme has nothing to do so far as wage revision settlement dated 6th September, 2000 is concerned and hence the question of termination of settlement dated 6th September, 2000 does not arise. It was stated that the Clause 10 of the Settlement dated 6th September, 2000 has nothing to do so far as Incentive
Agreement dated 9th May, 1988 is concerned. It was further stated that the allegation of mala fide intention/purpose for reduction of wages of the employees is totally baseless.
12. In paragraph 28 of the affidavit-in-opposition, the respondent Nos. 1, 2 and 3 stated the Incentive Scheme of 1988 has become totally infructuous and in the said paragraph 28, the respondent Nos. 1, 2 and 3 also stated the reasons justifying their action. The said paragraph 28 is set out hereunder :
“28. The contentions and allegations put forward in paragraph 19 of the said application are denied and disputed. The contention in the context of Article 21 the Constitution is totally misconceived and misleading. The Incentive Scheme of 1988 has become totally infructuous. The agreement dated 9.5.1988 was entered into on certain set of work norm existing at that point of time. With the passage of time such norm has become outmoded and have lost their significance. As a result, the Incentive Scheme of the Operatives as well as the Supervisors had to be discontinued. As a result of computerization which has brought about procedural and system changes in the working of different departments and shops from time to time, the working schedule and working norm of clerical graded staff had undergone wide changes during the years after introduction of Incentive Scheme of 1988. In other words, the norms has derated. Due to mechanisation through the use of Electronic equipment, installation of Personal Computer alongwith local area network connection, use of Computer aided design have given a new dimension so far as work norm is concerned. Implementation of electronic Card Attendance system has greatly reduced the clerical work-load of Time Office and accordingly the agreement of 9th May, 1988 has become totally obsolete. In view of the critical order position, there is hardly any scope for formulation of any scheme at all.”
13. In paragraph 30 of the affidavit-in-opposition, the respondent Nos. 1, 2 and 3 stated that there does not arise any question for reduction of wages. It has been stated that incentive is work related and that is why and same does not come within the purview of wages under Section 2(rr) of the said Act.
14. The learned advocate appearing for the petitioners argued that (a) the Agreement dated 9th May, 1988 regarding incentive scheme is Settlement within the meaning of Section 2(p) of the said Act, (b) it is still binding upon the parties to the said agreement dated 9th May, 1988 and (c) it shall continue to remain binding on the parties till it is altered by fresh settlement, award or valid legislation, (d) transmission of copies of agreement to an officer authorised in this behalf by the appropriate Government and the Conciliation Officer under Section 2(p) of the said Act should not be held to be a mandatory requirement for the validity of the settlement, (e) transmission of copies of agreement to the officer authorised in this behalf by the appropriate Government and the conciliation officer under Section 22(p) of the said Act is clearly directory. In support of his argument the learned Advocate for the petitioners referred to and relied upon the following cases :-
1. Life Insurance Corporation of India v. D. J. Bahadur and Ors.,
2. M.C.P.T. Sangam v. C.S. Ltd. and C.E.U. v. C.S. Ltd., 1997(2) LLJ 963
3. Sudhir Chandra Sarkar v. Tata Iron & Steel Company Ltd. and Ors., 1984(2) LLJ 223
4. Hindustan Lever Ltd. v. Hindustan Lever Mozdoor Sabha and Ors., 1996(2) CLR 102
5. “Management of Karnataka State Road Transport Corporation v. K.S.R.T.C. Staff & Workers’ Federation and Anr., 1999(2) CLR 645
6. State Bank of India Staff Union v. State Bank of India, 1992(65) FLR 237
7. L. Hirday Narain v. Income Tax Officer, Bareilly,
15. The learned Advocate for the respondent Nos. 1, 2 and 3 argued the following points :-
1. The Agreement dated 9th May, 1988 regarding incentive scheme is not a settlement within the meaning of Section 2(p) of the said Act because of non-compliance of the procedures which are mandatory. Therefore, at best this may be an agreement by and between the parties but not a settlement under Section 2(p) of the said Act.
2. Agreement cannot be enforced by a writ application.
3. Petitioners cannot pursue parallel proceeding.
4. Remedy, if any, lies under the provision under the said Act but not in writ jurisdiction.
16. The learned Advocate for the respondent Nos. 1, 2 and 3 raised a preliminary objection regarding maintainability of the writ application on the ground that the subject matter involved in the present writ application can only be decided by the appropriate forum under the provisions of the said Act and not in writ jurisdiction. In support of his arguments the learned Advocate for the respondent Nos. 1, 2 and 3 referred to and relied upon the following decisions :-
1. Bihar Rajya Bidyut Parisad Kamgar Union v. State of Bihar,
2. The Rajasthan State Road Transport Corporation Anr. v. Krishna Kant,
3. Mayurakshi Cotton Mills and Ors. v. Panchara Mayurakshi Cotton Mills Employees’ Union and Ors.,
4. Workmen of Delhi Cloth and General Mills Ltd. v. Delhi Cloth and General Mills Ltd. (1972)1 LLJ 99
5. Jhagarkhan Colleries (P) Ltd. v. G. C. Agarwal, Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Jabalpur and Ors., 1975(1) LLJ 163
6. Sail and Anr. v. Awadhesh Singh and Ors.,
7. Jyotish and Ors. v Union of India and Ors., 1994(2) LLJ 804
17. In Life Insurance Corporation of India v. D. J. Bahadur (supra) it was held that unless a settlement within the meaning of Section 2(p) of the said Act is subsequently altered by fresh settlement, award or valid legislation the same would continue to be in force. This view of Supreme Court was reiterated in Management of Kamataka State Road Transport Corporation v. KSRTC Staff & Workers’ Federation (supra). In Sudhir Ch. Sarkarv. Tata Iron & Steel Company Limited and Others (supra) Supreme Court held that a facet of collective bargaining is that any settlement arrived at between the parties would be treated as incorporated in the contract of service of each employee governed by the settlement. There remains no doubt that in Sudhir Ch. Sarkarv. Tata Iron and Steel case (supra) Supreme Court by the words “any settlement arrived at between the parties” meant settlement as contemplated under Section 2(p) of the said Act. It is well settled law that a settlement within the meaning of Section 2(p) of the said Act continues to be in force unless it is altered subsequently by a fresh settlement, aware or valid legislation. But the question which has to be decided here, in this writ proceeding, is whether the agreement dated 9th May, 1988 regarding incentive scheme is settlement within the meaning of Section 2(p) of the said Act.
18. Section 2(p) of the said Act reads as follows :-
“2(p). “Settlement” means a settlement arrived at tin the course of 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 appropriate -Government and the conciliation officer.”
19. The question of a valid and binding settlement is governed by the said Act and the Rules made thereunder. “Settlement” as defined in Section 2(p) of the said Act 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 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 appropriate Government and the conciliation officer. The settlement has to be in compliance with the statutory provision. In workmen of Delhi Cloth and General Mills v. Management (supra), Supreme Court in paragraph 14 of the reported decision held as follows :-
“Reliance was next placed on Section 18(1) to support the binding character of the settlement. This sub-section for its proper construction must be read with the other sub-sections and the relevant rules, in the light of the definition of “Settlement” as contained in Section 2(p) of the Industrial Disputes Act. “Settlement” as defined therein means a
settlement arrived at in the course of conciliation proceedings 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 the appropriate
Government and the Conciliation Officer. In the light of these provisions
we do not think that Section 18(1) vests in the management and the
union unfettered freedom to settle the dispute as they please and clothes
it with a binding effect on all workmen or even on all member workmen
of the union. The settlement has to be in compliance with the statutory
provisions.”
20. In Jhagrakhan Collieries (P) Ltd. v. G. C. Agarwal (supra), Supreme Court in paragraph 11 of the reported decision held as follows :-
“An analysis of the above definition would show that it contemplates
only two kinds of settlements : (i) A settlement arrived at in the course
of conciliation proceedings under the Act and (ii) a written agreement
between the “employer and the workmen arrived at otherwise than in
the course of conciliation proceedings. But a written agreement_of the
letter kind in order to fall within the definition must satisfy two more
conditions, namely, (a) it must have been signed by the parties thereto
in the prescribed manner, and (b) a copy thereof must have been sent to
the authorities indicated in Section 2(p).”
21. The learned Advocate for the petitioners referred to Madras High Court decision in State Bank of India Staff Union v. State Bank of India (supra) and argued that even when the agreement dated 9th May, 1988 was not forwarded to officer authorised in this behalf by the appropriate Government and the conciliation officer the same is a settlement within the meaning of Section 2(p) of the said Act. 1 am unable to accept this argument of the learned Advocate for the petitioners because of the Supreme Court decision in Workmen of Delhi Cloth and General Mills case (supra) and Jhagrakhan Collieries (P) Ltd. case (supra). I am of the view that the said agreement dated 9th May, 1988 is not a settlement within the meaning of Section 2(p) of the said Act because of non-compliance of the conditions mentioned in Section 2(p) of the said Act.
22. Though a specific point was taken in paragraph 13 of the affidavit-in-opposition that the agreement dated 9th May, 1988 is not a settlement within the meaning of Section 2(p) of the said Act as the second condition of jointly sending a copy thereof to the officer autorised in this behalf by the appropriate Government and the conciliation officer was not complied with yet the same was not denied in paragraph 15 of the affidavit-in-reply filed by the writ petitioners which deals with paragraph 13 of the affidavit-in-opposition. Thus the petitioners also accepted that the copy of such agreement dated 9th May, 1988 was not sent to the officer authorised in this behalf by the appropriate Government and the conciliation officer. It is important to note here that in paragraph 6 of the writ application while referring to the settlement dated 6th September, 2000 the petitioners
categorically stated that as per provisions of Rule 68 of the West Bengal Industrial Disputes Rules the settlement was duly communicated by the parties to the Labour Commissioner, Government of West Bengal of his recording. But while referring to agreement dated 9th May, 1988 in paragraph 3 of the writ petition no such statement regarding compliance of the said Rule 68 has been stated. Under the circumstances I am of the view that the agreement dated 9th May, 1988 is not a settlement within the meaning of Section 2(p) of the said Act because of non-compliance of the conditions mentioned in Section 2(p) of the said Act.
23. Rule 68 of the West Bengal Industrial Disputes Rules, 1958 (hereinafter referred to as the said Rules) reads as follows :-
“68. Memorandum of Settlement. –
(1) A Settlement arrived at in the course of conciliation proceeding or otherwise shall be in Form J.
(2) The settlement shall be signed –
(a) in the case of the employer, –
(i) by the employer himself or by his authorised agent or where the employer is an incorporated company or other body corporate, by the agent, manager or any other principal officer of the company or other corporated body, or
(ii) by an officer referred to in Clause (a) or Clause (b) of Sub-section (2) of Section 36, or where the employer is not a member of any association of employers, by officer or other employer referred to in Clause (c) of the said sub-section authorised in the manner laid down in Sub-rule (2) of Rule 78A.
(b) in the case of the workman, –
(i) by the workman himself, or
(ii) by the President of Secretary of a trade union or federation of trade unions referred to in Clause (a) or Clause (b) of Sub-section (1) of Section 38, or where the workman is not a member of any trade union, by an officer or other workmen referred to in Clause (c) of the said sub-section authorised in the manner laid down in Sub-rule (1) of Rule 78A.
(3) Where a settlement is arrived at between an employer and his workman/workmen otherwise than in course of conciliation proceeding before a Board or Conciliation Officer, the parties to the settlement shall jointly send a copy thereof to the Assistant Secretary to the Government of West Bengal, Labour Department and the Conciliation Officer concerned, either by registered post with acknowledgment due or by personal service upon receipt, during the hours respectively fixed for the purpose by the officers concerned.”
24. In Workmen of Delhi Cloth and General Mills v. Management (supra), Supreme Court also considered Section 18 of the said Act and Rule 58 of the Industrial Disputes (Central) Rules, 1957 made under Section 38 of the Industrial Disputes Act, 1947. Sub-rule 4 of Rule 58 reads as follows :
“Where a settlement is arrived at between an employer and his workmen otherwise than in the course of conciliation proceeding before a Board or a Conciliation Officer, the parties to the settlement shall jointly send a copy thereof to the Central Government, the Chief Labour Commissioner (Central), New Delhi and the Regional Labour Commissioner (Central), and to the Conciliation Officer (Central) concerned.”
If Sub-rule 4 of Rule 58 of Industrial Disputes (Central) Rules, 1957 is compared with Sub-rule (3) of Rule 68 of the said Rules then it will be found that both the rules are similar. One relates to the Central Government the other relates to the State Government. In Workmen of Delhi Cloth Mills Ltd. (supra) Supreme Court held that keeping in view its object and purpose, the Rule 58 of the Industrial Disputes (Central) Rules, 1947 does seem to demand full compliance in order to clothe the settlement with a binding character. On the same analogy Rule 68 of the said Rule also demands full compliance in order to clothe the agreement with a binding character.
25. In J. K. Collieries (P) Ltd. v. G. C. Agarwal (supra), in paragraph 17 of the reported decision, Supreme Court, inter alia, held as follows :-
“We have already noticed that according to the scheme of Section 18 read with Section 2(p) an agreement, made otherwise than in the course of conciliation proceedings to be settlement within the meaning of the Act must be a written agreement signed in the manner prescribed by the Rules framed under the Act. As rightly pointed out by Mr. Ramamurthy, learned counsel for the respondents an implied agreement by acquiescence, or conduct such as acceptance of a benefit under an agreement to which the worker acquiescing or accepting the benefit was not a party, being outside the purview of the Act, is not binding on such a worker either under Sub-section (1) or under Sub-section (3) of Section 18.”
26. In my opinion the agreement dated 9th May, 1988 regarding incentive scheme is not a settlement within the meaning of Section 2(p) of the said Act and such agreement does neither bind the employer nor the workman either under Section 18(1) or Section 18(3) of the said Act. Section 19 of the said Act also has no manner of application in respect of such an agreement.
27. The agreement dated 9th May, 1988 is nothing but an agreement by and between the parties to the said agreement. The said agreement dated 9th May, 1988 is neither a statutory agreement nor a statutory scheme and, therefore, would be unenforceable in an application under Article 226 of the Constitution of India. This view is supported by the decision of Supreme Court in SAIL v. Awadhesh Singh (supra), wherein it was held that a Memorandum of Agreement not being a statutory scheme is unenforceable in an application under Article 226 of the Constitution of India. Even a settlement within the meaning of Section 2(p) of the said Act cannot be enforced by a writ application. In this connection reference may be made to Jyotish and Ors. v. Union Of India and Ors. (supra) wherein, in paragraph 9, the Division Bench of Patna High Court, inter alia, observed as follows :
“It is true that the National Coal Wage Agreement is a settlement within the meaning of Section 2(p) of the said Act. However, as the respondent-company is a ‘State’ within the meaning of Article 12 of the Constitution of India and in my opinion, a writ application does not lie under Article 226 of the Constitution of India for enforcement of right under a settlement. Such a right can be enforced only by raising an industrial dispute. It is now well-known that this writ Court cannot convert itself as Industrial Court for the purpose of determining industrial dispute.
Reference in this connection may be made to Basant Kumar Sarkar and Ors. v. The Eagle Rolling Mills Ltd. and Ors. (1964-II-LLJ-105).”
28. It further appears from annexure ‘P’ of the affidavit-in-opposition filed by respondent Nos. 1, 2 and 3 that a proceeding under the said Act is already pending before the conciliation Officer in respect of the notice dated 31.10.2000 issued by the Chief General Manger (Personnel) for respondent No. 1.
29. I find from the relative positions taken by the parties in the writ petition, affidavit-in-opposition and affidavit-in-reply that there are other disputes between the parties regarding service condition of the workmen. I find that there are considerable disputes in regard to the material facts and that the disputes are of nature which cannot be conveniently adjudicated in a writ proceeding. These disputes, it seems to me, are more appropriate for adjudication under the Industrial Disputes Act. I, therefore, decline to interfere in this matter before me. My view is supported by a decision of Supreme Court in Bihar Rajya Bidyut Parisad Kamgar Union v. State of Bihar (supra). Assuming that the disputes involved in the present writ proceeding relate to recognition, observance or enforcement of any of the rights or obligations created by the said Act then the only remedy is to approach the forums created by the said Act. This view is supported by a decision of Supreme Court in Rajasthan State Road Transport Corporation v. Krishna Kant (supra) and in that matter of Chandrakant Tukram Nikam v. Municipal Corporation of Ahmedabad . The disputes sought to be resolved partake the character of Industrial Dispute and, therefore, parties may move the appropriate authority under the said Act so that the dispute may be resolved before the appropriate forum under the said Act. This view is also supported by the decision of Supreme Court in Mayurakshi Cotton Mills and Ors. v. Panchra Mayurakshi Cotton Mills Employees’ Union and Ors. (supra). The learned Advocate for the petitioners relying upon L. Hirday Narain v. Income-Tax Officer, Bareilly (supra) argued that High Court entertaining petition and giving hearing on merits, thereafter cannot reject the petition on the ground that statutory remedy was not availed off. I am not rejecting the writ application on the said ground at all. I have discussed the matter hereinabove. I have recorded my findings in respect of the agreement dated 9th May, 1988 in respect of incentive scheme, I have held that the said agreement dated 9th May, 1988 is not a settlement within the meaning of Section 2(p) of the said Act and neither the employer nor the workmen are bound by the said agreement either under Section 18(1) or under Section 18(3) of the said Act. I have also held that Section 19 of the
said Act has no manner of application in respect of such an agreement. I find that (a) there is other dispute between the parties regarding service condition of the workmen, (b} there is considerable dispute in regard to the material facts in respect of the other dispute involved in the matter (c) the dispute is of a nature which cannot be conveniently adjudicated in this writ proceeding. Under these circumstances I decline to interfere in this matter before me. Thus the writ petition is disposed of. All interim orders are vacated. However there will be no order as to costs.
All parties are to act on a signed copy of the minutes of the operative part of this judgment on the usual undertakings,