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PETITIONER: AMETEEP MACHINE TOOLS

       Vs.

RESPONDENT: LABOUR COURT HARYANA & ANOTHER

DATE OF JUDGMENT22/09/1980

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. KRISHNAIYER, V.R.

CITATION:  1980 AIR 2135            1981 SCC  (1) 768

ACT:      Industrial Disputes Act, 1947, section 36, scope of.

HEADNOTE:      The appellant company manufactures machine tools at its factory in  Faridabad employing  250 workmen  including  the second respondent,  Sadhu Singh.  Demands of the workmen for an improvement  in the  conditions of  the  service  led  to conciliation proceedings  and a  settlement under  s. 12 was recorded on  June 20,  1969 by the Conciliation officer. The settlement included  a provision  that the workmen would not raise any  demand involving  further financial burden on the appellant for  a period  of two  years. Before the expiry of that period,  however, a  fresh demand  was raised on August 17, 1970  by the  General Labour  Union asking  for dearness allowance at 25 per cent. The management having refused this demand the workmen resorted to a "sit down" strike on August 26 and  27, 1970.  The second  respondent  Sadhu  Singh  was charged with  alleging serious  misconduct. Sadhu  Singh did not  participate   in  the  inquiry.  Accepting  the  report submitted by the Inquiry officer that Sadhu Singh was guilty of instigating  the workmen  to go on strike the services of Sadhu Singh were terminated by the management with immediate effect by  an order dated September 14, 1970. The management dismissed some  other workmen  also. The  dismissal  of  all workmen formed the subject of another settlement under s. 12 of the  Act dated  November 21,  1970 and it was agreed that the  dismissed  workmen  including  Sadhu  Singh  should  be regarded as  retrenched from  service. The remaining workmen agreed to  resume work unconditionally. Sadhu Singh, took up the matter  before the Labour Court stating that not being a signatory to  the settlement of November 21, 1970 he was not bound by it. The Labour court accepted his plea and made its ward on  September 30,  1972. It  found  that  the  domestic inquiry was not proper inasmuch as notice of the inquiry had failed to  reach Sadhu  Singh, thereby  preventing him  from participating in  the domestic inquiry. Further it held that since Sadhu  Singh had been ill from August 24, to September 9, 1970  he could not be said to have instigated the strike. The appellant  having failed  before the High Court has come in appeal after obtaining special leave from this Court.      Dismissing the appeal, the Court, ^

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    HELD:  Section   36  of  the  Industrial  Disputes  Act provides for representation of the parties to a dispute. The workmen are  entitled by  virtue of  sub-section (1)  to  be represented in a proceeding under the Act by a member of the executive or other office bearer of a registered trade union of which 769 they are members or of a federation of trade unions to which that trade union is affiliated, and where the workmen is not a member  of any  trade union,  he can  be represented  by a member of  the executive  or other  office bearer of a trade union connected  with, or  by any  other workman employed in the industry  in which  the workmen  is employed.  It is not obligatory, however,  that a  workman who  is a  party to  a dispute must  be represented  by another. He may participate in the  proceeding himself.  Where conciliation  proceedings are taken  and a  settlement  is  reached,  it  is  a  valid settlement and  binding on  the parties  even if the workmen who are  party to the dispute participate in the proceedings personally and  are not  represented by  any of  the persons mentioned in  s. 36(1)  of the Act. In the present case; (1) by  executing   a  memorandum   the  several   workmen   who individually signed it on 21st August, 1970 bound themselves by the  terms of  the settlement, but as Sadhu Singh had not signed the  memorandum nor  had he  authorised  any  of  the workman to  sign the  memorandum on  his behalf  he was  not bound  by   the  settlement.  (2)  The  settlement  of  21st November, 1970  can on  no account be understood as covering and concluding the demand for recalling the order dismissing Sadhu Singh,  as his reinstatement was never included in the charter  of   demands  of  the  workmen  which  led  to  the conciliation  proceedings  and  those  proceedings  did  not involve  the   consideration  of   such  a  demand.  In  the circumstances, it  was open  to Sadhu  Singh to  assail  his dismissal from service and to contend that the settlement of 21st November  1970 did  not bind  him. (3) The Labour Court was right  in adjudicating on the propriety of his dismissal and, having  found that  the dismissal was not justified, in granting relief. [771 F-772E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 785 of 1975.      Appeal by  Special Leave  from the  Judgment and  order dated 7-1-1973 of the Punjab and Haryana High Court in Civil Writ No. 6677/74.      A. K.  Sen,  S.  K.  Gambhir,  A.  K.  Panda  and  Miss Ramrakhiani for the Appellant.      Yogeshwar  Prasad,  A.  K.  Srivastava  and  Miss  Rani Chhabra for the Respondent No. 2.      The Judgment of the Court was delivered by      PATHAK, J.-This  appeal by  special leave  is  directed against a  judgment of  the High Court of Punjab and Haryana summarily dismissing a writ petition filed by the appellant.      The  appellant  is  a  private  limited  company  which manufactures machine  tools as  its factory in Faridabad. It employs 250  workmen. The second respondent, Sadhu Singh, is one of  them. Demands  by the  workmen for an improvement in the  conditions   of  their   service  led  to  conciliation proceedings under  the Industrial  Disputes Act, 1947, ("the Act"), and on June 20, 1969, a settlement under s. 12 of the 770 Act in  satisfaction of  those demands  was recorded  by the

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Conciliation officer.  The settlement  included a  provision that the  workmen  would  not  raise  any  demand  involving further financial  burden on  the appellant  for a period of two years.  Before the  expiry of  that period,  however,  a fresh demand  was raised  on August  17, 1970 by the General Labour Union  asking for  dearness allowance at 25 per cent. The management demurred, and explained that having regard to the structure  of wages and allowances now payable under the settlement, there  was no  justification for  the demand. On August 26, 1970 the workmen resorted to a "sit down" strike, which continued the next day. According to the appellant, on August 27,  1970, Sadhu  Singh  instigated  the  workmen  to "down" tools  and go  on  a  "sit  down  strike.  Successive notices by  the management  the same  day failed to dissolve the strike. Charges were framed against Sadhu Singh alleging serious misconduct  and a  domestic enquiry was ordered. The workman, it  is said,  declined to  accept the  charge-sheet and, although  he was  directed to appear before the Inquiry Officer, Sadhu  Singh did not participate in the inquiry. On September 13, 1970, the Inquiry officer submitted his report to the management. According to him, the strike was illegal, and Sadhu  Singh was guilty of instigating the workmen to go on strike,  and besides  he was  guilty of  loitering in the factory. The  findings being  accepted by  the management an order followed  on September 14, 1970 dismissing Sadhu Singh from service  with immediate  effect. The  President of  the General  Labour   Union  then   pressed  the  management  to reinstate Sadhu  Singh. Meanwhile  the management  had taken action dismissing  other workmen  also. The dismissal of all the workmen formed the subject of a settlement under s.12 of the Act  on November  21, 1970,  and it  was agreed that the dismissed workmen, including Sadhu Singh, should be regarded as retrenched  from service. The remaining workmen agreed to resume work  unconditionally. The  memorandum of  settlement was signed  by the  management  on  the  one  hand  and  the individual workmen  on the  other. A  few days  after, Sadhu Singh wrote  to the Labour Commissioner claiming that he was not a  signatory to  the settlement and that he would settle his  dispute   himself  with   the  management.   The  State Government referred the dispute in regard to the termination of Sadhu  Singh’s service  for adjudication  to  the  Labour Court, Rohtak.  While the  management took  its stand on the facts found in the domestic inquiry report and relied on the circumstance that the settlement dated November 21, 1970 was binding on Sadhu Singh, Sadhu Singh asserted that he was not guilty of  any  misconduct  on  August  27,  1970.  He  also contended that the charge sheet had never been served on him and therefore the exparte domestic inquiry was vitiated. The 771 Labour Court  by its  order dated  September 20,  1972 found that Sadhu  Singh was  not a  signatory to the settlement of November 21,  1970, and was, therefore, not bound by it. The Labour Court  made its award on September 30, 1972. It found that the  domestic inquiry was not proper inasmuch as notice of the  inquiry had  failed to  reach Sadhu Singh because it had been  sent to  a wrong  address, thereby  preventing him from participating in the domestic inquiry. On the merits of the dispute the Labour Court found that Sadhu Singh had been ill from  August 24  to September  9,  1970,  and  that  was established by  a medical certificate which, on inquiry from the Employees State Insurance Department, was found to be in order, and  consequently it  could not  be believed that the workman had  instigated or  participated in  the "tool down" and "sit  down" strike.  In support  of its  case that Sadhu Singh was  present within the factory premises on August 27,

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1970,  the   management  placed   reliance  on   a  document purporting to  have been  signed by  the workmen and setting forth the  assurance that  he would conduct himself properly and be  of good behaviour. The Labour Court said that if the document be  accepted as genuine there was sufficient reason for accepting  the assurance  and refraining from taking any action against  the workman.  The Labour Court held that the dismissal  was  not  justified  and  that  Sadhu  Singh  was entitled  to   reinstatement  with  continuity  of  previous service and full back wages.      The appellant  filed a  writ petition in the High Court against the  award, but the writ petition was dismissed. And now this appeal.      The appellant  challenges the  findings of  the  Labour Court. It  is contended  that the  settlement dated November 21, 1970  was binding  on Sadhu Singh and it was not open to him resile  from it.  Now Section 36 of the Act provides for representation of  the parties to a dispute. The workmen are entitled by virtue of sub-section (1) to be represented in a proceeding under  the Act  by a  member of  the executive or other office  bearer of  a registered  trade union  of which they are members or of a federation of trade unions to which that trade union is affiliated, and where the workman is not a member  of any  trade union,  he can  be represented  by a member of  the executive  or other  office bearer of a trade union connected  with, or  by any other workman employed in, the industry  in which  the workman  is employed.  It is not obligatory, however,  that a  workman  who  is  a  Party  to dispute must  be represented  by another. He may participate in the  proceeding himself.  Where conciliation  proceedings are taken  and a  settlement  is  reached,  it  is  a  valid settlement and  binding on  the parties  even if the workmen who are party to the dispute participate in  the 772 proceedings personally and are not represented by any of the persons mentioned  in s.  36(1). That is what happened here. The evidence  shows that  the individual  workmen negotiated the  settlement   themselves  and  individually  signed  the memorandum off  settlement. By  executing a  memorandum they bound themselves  by the  terms of  the settlement.  In  the present case,  however, while  several  workmen  signed  the memorandum of settlement on 21st November, 1970, Sadhu Singh did not.  It is  also established  that Sadhu  Singh did not authorise any of the other workmen to sign the memorandum on his behalf.  And what  is of importance is that, as found by the Labour  Court, the  demand that  the dismissal  of Sadhu Singh be  set aside  and that  he should  be reinstated  was never included  in the  charter of  demands of  the  workmen which  led   to  the  conciliation  proceedings,  and  those proceedings did  not involve  the consideration  of  such  a demand. According to the Labour Court, that was the admitted position, Consequently,  the settlement  of  21st  November, 1970 can  on  no  account  be  understood  as  covering  and concluding the  demand for  recalling the  order  dismissing Sadhu Singh.  In the  circumstances, it  was open  to  Sadhu Singh to  assail his  dismissal from  service and to contend that the settlement of 21st November, 1970 did not bind him. The Labour  Court was right in adjudicating on the propriety of his  dismissal and,  having found  that the dismissal was not justified, in granting relief.      It is submitted that notice of the domestic inquiry was duly effected  on Sadhu  Singh and the finding of the Labour Court to  the contrary  is erroneous.  Plainly, the question turns on the evidence on the record and we see no reason why the finding  of the  Labour Court  should not  be  accepted.

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Having reached  the conclusion that the domestic inquiry, in the circumstances,  was improper  it was  open to the Labour Court to  enter into the dispute on its merits and pronounce its award.  The finding  that Sadhu  Singh was ill and could not be said to have instigated or participated in the strike on August  27, 1970 is a finding of fact which proceeds from the material  on the  record. We  are not satisfied that the finding should be disturbed.      Considerable reliance  was placed  by the  appellant on the document  said to  have been  executed  by  the  workman containing the  assurance that he would be of good behaviour and, it is submitted. 773 that after  executing the  document Sadhu Singh went back on the assurance  and set the strike in motion. We see no force in the  submission.  The  evidence  led  by  the  management attempts to  show specifically  that Sadhu  Singh instigated the strike  at 10 O’clock in the morning on August 27, 1970. It would not be unreasonable to hold that the declaration of assurance was  executed subsequently.  It was  an  assurance accepted by  the management,  and, therefore,  there  is  no reason why the management should have insisted on initiating disciplinary proceedings thereafter against the workman.      In the  result, the  appeal is  dismissed with costs to the second  respondent, which  we assess  at Rs.  2,000. The appellant has  deposited that  sum pursuant  to the order of this Court  dated April  30, 1974,  and it  is open  to  the second respondent to withdraw the money. V. D. K.                                   Appeal dismissed. 774