PETITIONER: STATE OF BIHAR Vs. RESPONDENT: KRIPA SHANKAR JAISWAL DATE OF JUDGMENT: 14/10/1960 BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N. CITATION: 1961 AIR 304 1961 SCR (2) 1 ACT: Industrial Dispute--Conciliation Proceedings--Unregistered Union--Settlement with--If binding on management--Industrial Disputes Act, 1947 (14 of 1947), ss. 11(2), 12(6), 18(3)(a) and (d). HEADNOTE: A settlement was arrived at between the management of Mankatha Distillery and the workmen's union before the con- ciliation officer. The Union was not registered under the Indian Trade Unions Act on the date of the said settlement. The terms of the settlement not having been carried out by the management the respondent, who was the proprietor, and the manager of the said distillery were prosecuted and were convicted by the Magistrate. The Sessions Court, on appeal by the respondent, confirmed the Magistrate's order. On an appeal to the Patna High Court by the respondent the High Court set aside the order of conviction and acquitted the respondent holding that there was no recognised union and that because the conciliation officer had visited the Distillery without giving a reasonable notice, on 18-3-1954 there could be no agreement between the proprietor on one side and the workmen as a whole on the other on the date and it was wrong to suppose that because somu workmen had signed the settlement that it bound all the workmen: Held, that for a dispute to constitute an industrial dispute it is not a requisite condition that it should be sponsored by a recognised union or that all the workmen of an industrial establishment should be parties to it. A settlement arrived at in course of conciliation proceedings falls within s. 18(3)(a) and (d) of the Industrial Disputes Act and as such binds all the workmen though an unregistered union or only some of workmen may have raised the dispute. The absence of notice under s. 11(2) by the Conciliation Officer does not affect the jurisdiction of the conciliation officer and its only purpose is to apprise the establishment that the person who is coming is the conciliation officer and not a stranger. Any contravention of S. 12(6) in not submitting the report within 14 days may be a breach of duty on the part of the conciliation officer ; it does not affect the legality of the proceedings which terminated as provided in S. 20(2) of the Act. 1 2 Where a fresh settlement is arrived at between the parties and all disputes are settled, then " public interest does not require that the stale matter should be resuscitated ". Newspapers Limited, Allahabad v. State Industrial Tribunal, Uttar Pradesh, [1960] 2 L.L.J. 37, referred to. Andheri Marol Kurla Bus Service v. The State of Bombay, A.I.R. [1959] S.C. 841 and State of Bihar v. Hiralal Kejrilal, [1960] 1 S.C.R. 726, approved. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 83 of
1959.
Appeal from the judgment and order dated July 25, 1958, of
the Patna High Court in Criminal Revisions Nos. 593 and 594
of 1958 arising out of the judgment and order dated March 3,
1958, of the Additional Sessions Judge, Monghyr, in Criminal
Appeal No. 286 of 1956.
D. P. Singh and R. H. Dhebar, for the appellant.
C. P. Lal, for the respondent.
1960. October 14. The Judgment of the Court was delivered
by
KAPUR J.-This is an appeal brought in pursuance of a
certificate under art. 134(1)(c) of the Constitution against
the judgment and order of acquittal of the High Court of
Patna.
There were certain disputes between the workmen and the
Management of Mankatha Distillery of which the proprietor is
the respondent. On November 23, 1953, a petition was
submitted on behalf of the workmen of the Distillery to the
Assistant Labour Commissioner, Bhagalpur, which was signed
by one Banarsi Choudhuri on behalf of himself and for and on
behalf of the workmen of the Distillery. In this petition,
certain grievances of the workmen were set out. Con-
ciliation proceedings were started, and there was an
agreement on December 5, 1953, which the High Court has
described as ‘some sort of agreement’.
On January 12, 1954, an application was made for the
registration of the Union of the workmen of the Distillery
under the Indian Trade Unions Act, and the same was
registered on March 23, 1954, under the
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name and style of Mankaths Distillery Mazdoor Panchayat.
The Distillery was closed and the workmen were discharged,
and thereafter on February 19, 1954, the General Secretary
of the Mankatha Distillery Mazdoor Panchayat, even though it
was not registered at the time, sent a letter to the
Management, protesting against the discharge of the workmen
without payment of compensation and objecting to the inten-
tion of the employers to re-start the factory after
employing other workmen. It was also stated therein that
the workers who had been discharged, had been working for
some years and a list of such workmen was attached to the
letter. The following portion of the letter is relevant for
the purposes of this appeal:-
” All the persons, named below, shall work in the factory in
legal manner, on monthly salary on permanent basis. It is
not only hoped, rather fully believed that you would
consider the above facts and gladly accept the same.
On getting a stisfactory reply, all the workers, who had
been working in your factory since years, would report
themselves to duty and work according to your orders “.
Although it is addressed to the proprietors of the Dis-
tillery, it seems to have been sent to the Assistant
Commissioner of Labour, Bhagalpur, where it was received on
February 25, 1954. The following endorsements were made on
this letter:-
” Discussed with you. The management is re. quested to
attend conciliation proceeding on 10th March, 1954, at 11
a.m. The Union is also informed accordingly “.
Another petition dated March 5,1954, was sent by the General
Secretary of the Distillery Mazdoor Panchayat to the
Assistant Labour Commissioner, in which the names of all the
persons who had been freshly employed by the proprietors,
were mentioned and it was prayed that those who were
discharged at the time of the closing of the factory, may be
reinstated and wages paid, and a request was made to the
Assistant Labour
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and get the workmen reinstated. The order on this petition
was:-
“, The parties have been called to-morrow in my office for
conciliation. The result of the proceeding may be awaited.”
On March 18, 1954, a settlement was arrived at between the
management and the workers which is signed by the
Conciliation Officer appointed under s. 4 of the Industrial
Disputes Act, 1947 (Act 14 of 1947) (hereinafter termed, for
the sake of brevity, the Act). This document was signed by
the proprietor and the manager of the Distillery and by
Banarsi Choudhuri, General Secretary of the Workers’
Panchayat and also by six other members of the Panchayat who
were evidently the members of the Executive Committee of the
Panchayat. The terms of the settlement were as follows:
” 1. It is agreed that the workers’ named in Schedule ” A ”
shall be taken to jobs without break in their services.
2. The new hands appointed after the closure of the
factory shall be discharged.
3. If three shifts will start and any other increased
opportunity of employment will be available in the factory,
the management shall employ only those workers who are left
to-day and who had worked in August 1953 and September 1953
in order of seniority.
4. Shri Banarsi Choudhry, Balmiki Singh, Bhaso Singh and
Kaltu (?) Singh are accused in a case pending before the
Court at Monghyr. The Management agrees that if they will
be acquitted from the court, they will be given jobs.
5. All the workers will be put in permanent basis as they
were previously. The order putting them in the temporary
basis after the opening of the Mill is cancelled.
6. The arrears will be paid on monthly basis as before
instead of weekly basis as at present after the re-opening
of the factory.
7. The grievances raised by the workers and covered by the
agreement dated the 5th December,
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1953, will be decided by the Labour Commissioner Bihar,
Patna and his decision shall be acceptable to and final for
the parties.
8. The work of the factory will be resumed immediately.
9. The workers will continue to have all the benefits and
privileges which are guaranteed by law or usage and custom.
10. The workers will not be victimised for their Trade
Union activities”.
The prosecution case is that the terms of the settlement
were not carried out in that the old workmen were not re-
employed and the newly employed workmen were not discharged.
Thereupon, the respondent and the manager of the Distillery,
one Ram Narain Lal were prosecuted on a complaint filed by
the Labour Superintendent, Mr. L. D. Singh, after sanction
of the Government of Bihar had been obtained. Both the
accused persons were convicted and sentenced to a fine of
Rs. 150 each or, in default, one month’s simple
imprisonment. The learned Magistrate held that there was an
industrial dispute within the meaning of the Act, and that
the conciliation settlement dated March 18, 1954, was a
valid settlement and the respondent failed to implement the
first term of the settlement. Against this order, an appeal
was taken to the Sessions Court and the Third Add1.
Sessions Judge dismissed the appeal. He confirmed the
findings of the learned Magistrate.
Against this order of the Sessions Judge, an appeal was
taken to the High Court by the respondent only, and the High
Court set aside the order of conviction and acquitted the
accused. It held that there was no recognised Union, though
there was ” some kind of a vague Union ” existing, and that
because the Conciliation Officer had visited the Distillery
without giving a reasonable notice, the ” decision of the
Conciliation Officer on 18-3-1954, must, therefore, be
deemed to be without jurisdiction “, and that there was no
agreement arrived at between the proprietor on one side and
the ” labourers ” as a whole on the other, and “: it is
preposterous to suppose that because some labourers
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had signed the settlement that it bound all the labourers.
It seems to me that there is a serious defect in this
settlement which is described as a decision of the
Conciliation Officer dated 18-3-1954 “. On the ground,
therefore, that the settlement was not a settlement which
was binding on the respondent, the conviction was set aside.
It would be an erroneous view if it were said that for a
dispute to constitute an industrial dispute it is a
requisite condition that it should be sponsored by a
recognised union or that all the workmen of an industrial
establishment should be parties to it. A dispute becomes an
industrial dispute even where it is sponsored by a union
which is not registered as in the instant case or where the
dispute raised is by some only of the workmen because in
either case the matter falls within s. 18(3)(a) and (d) of
the Act. See also Newspapers Limited, Allahabad v. The
State Industrial Tribunal, Uttar Pradesh (1). The
settlement of March 18, 1954, arrived at during the
conciliation proceedings was signed by the General Secretary
and members of the executive committee of the Union though
it was unregistered at the time. We cannot therefore give
our accord to the decision that the settlement of March 18,
1954, was not a settlement binding between the parties.
The scope and effect of s. 11(2) was raised before us and it
was argued that because the conciliation officer did not
give any reasonable notice before he came to the Distillery
on March 18, 1954, the settlement was not a legal settlement
and consequently was not binding on the parties and its
breach could not fall within the penal consequences of s. 29
of the Act. Now, s. 11(2) provides:-
” A conciliation officer or a member of a Board or Court or
the presiding officer of a Labour Court, Tribunal or
National Tribunal may for the purpose of inquiry into any
existing or apprehended industrial dispute, after giving
reasonable notice, enter the premises occupied by any
establishment to which the dispute relates “.
(1) [1960] 2 L.L.J. 37 at 38.
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Section 11 only deals with the procedure and powers of the
conciliation officers and sub-section 2 authorises the
conciliation officer to enter the premises occupied by any
establishment to which the dispute relates after giving a
reasonable notice. This notice is only for the purpose of
entering the premises to make an enquiry into any existing
industrial dispute or an apprehended industrial dispute, and
is merely to apprise the establishment that it is the
conciliation officer who is coming and not an absolute
stranger who has no connection at all with the machinery set
up for the purposes of the Act. The absence of a notice
under s. 11(2) therefore does not affect the jurisdiction of
the Conciliation Officer.
As to what the conciliation officer can and should do, is
contained in s. 12 of the Act. Sub-section 1 empowers the
conciliation officer to hold conciliation proceedings in the
case of a public utility service after notice under s. 22
whereby a mandatory duty is cast upon him to do so, and in
other disputes it is ‘his discretion to hold conciliation
proceedings in the prescribed manner. Under sub-s. (2) he
has to investigate without delay the dispute in all matters
affecting the merits of the dispute, and he can do such
things as he thinks necessary for inducing the parties to
come to a fair and amicable settlement. Sub-section (3)
provides that if a settlement of the dispute is arrived at,
a report thereof shall be sent to the appropriate Govern-
ment, and sub-s. (4) also provides for the sending of a
similar report to the appropriate Government if no
settlement is arrived at. Sub-s. (5) deals with the powers
of the Government when a report is received as to the non-
settlement of the dispute, and sub-s. (6) which was relied
upon provides:-
S. 12(6) ” A report under this section shall be submitted
within fourteen days of the commencement of the conciliation
proceedings or within such shorter period as may be fixed by
the appropriate Government.
Provided that the time for the submission of the report may
be extended by such period as may be agreed upon in writing
by all the parties to the dispute.”
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It was argued that because the report had not been sent to
the Government within fourteen days of the commencement of
the conciliation proceedings, the settlement arrived at was
invalid and was not binding. This contention must be
repelled because any contravention of s. 12(6) may be a
breach of duty on the part of the conciliation officer; that
does not affect the legality of the proceedings which
terminated as provided in s. 20(2) of the Act. It was so
held by this Court in Andheri Marol Kurla Bus Service v. The
State of Bombay (1). It cannot be said, therefore, that the
settlement which was arrived at on March 18, 1954, was not a
legal settlement and that a breach of it would not attract
the penal provisions of s. 29 of the Act.
After the case was decided by the Judicial Magistrate the
parties arrived at a fresh settlement on October 6, 1956,
which recited:
” That this settlement made this day the 6th October, 1956,
at Patna, settles all the pending grievances and/or demands
of workmen whatsoever “.
As a result of this out of the discharged workmen 25, whose
names are given in Appendix A attached to the compromise,
were reinstated with effect from October 8, 1956. The claim
with regard to the other discharged workmen was withdrawn.
This settlement was accepted by the Industrial Tribunal by
an order dated October 10, 1956. This shows that all
disputes between the parties have been settled and workmen
have been reinstated. In view of this in the words of Subba
Rao, J., in the State of Bihar v. Hiralal Kejrilal (2) ”
public interest does not require that the stale matter
should be resuscitated “. Therefore we do not think it
necessary to interfere under art. 136 with the order of the
High Court.
The appeal is therefore dismissed.
Appeal dismissed.
(1) [1969] Supp. 2 S.C.R. 734.
(2) [1960] :S.C.R. 726, 736.
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