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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

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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 3 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

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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 4 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, 5 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-

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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 6 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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7 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." 8 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

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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. 9