http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 20  

PETITIONER: WORKMEN OF M/S HINDUSTAN LEVER LTD. & ORS.

       Vs.

RESPONDENT: MANAGEMENT OF M/S HINDUSIAN LEVER LTD.

DATE OF JUDGMENT05/01/1984

BENCH: DESAI, D.A. BENCH: DESAI, D.A. REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)

CITATION:  1984 AIR  516            1984 SCR  (2) 307  1984 SCC  (1) 728        1984 SCALE  (1)15

ACT:      Industrial Disputes Act 1947      Industrial Dispute-Jurisdiction of industrial tribunal- Determined from  the order of reference-Status of person not questioned by employer-Tribunal whether entitled to suo motu decide as a preliminary issue.      Concluded  Agreement   between  Management  and  Union- Management acting on the agreement for some years-Management whether later  entitled   to repudiate and disown agreement- Difference between unilateral repudiation and termination of agreement Indicated.      Industrial  disputes-Adjudication   of-Concept  of  res judicate-Whether applible.

HEADNOTE:      The appellant-Union  and the respondent-company through their communications  dated January  24,1957, April  24,1957 and May  1,1957 concluded  an agreement  relating to various items of  industrial disputes which inter alia provided that the employer  had agreed  not to  contest the  issue whether field force including salesmen were not ’workmen’ within the meaning of the expression in the Industrial Disputes Act and that disputes of an All-India nature could be raised only at Delhi.      Two  employees   of  the  Respondent-company  who  were salesmen and  protected workmen  with  the  meaning  of  the expression in the Industrial Disputes Act, 1947 and who were office-bearers of the union, were charge sheeted and after a disciplinary enquiry  their services  were  terminated.  The appellant-union raised an industrial dispute contending that the termination  of  services  of  these  two  workmen  were illegal and  invalid,  and  that  the  enquiry  was  equally illegal, and  improper, and  that the action of the employer was an  act of  reprisal and victimization, because of their trade  union   activities.  The   Government  referred   the industrial dispute to the Industrial Tribunal.      The employer  contended that  the two  workmen were not ’workmen’ within  the meaning  of the  expression in the Act and that  the Government  had no  jurisdiction to  refer the dispute to the Industrial Tribunal. It was further contended that the  services of the workmen were terminated not by way

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 20  

of punishment but under the contract of service and that the disciplinary enquiry  which was  commenced was  subsequently dropped.      The appellant-union however contended that the employer was estopped  from challenging the status of the two workmen within the meaning of the expression 308 in the  Act on  account of  the subsisting, valid, concluded agreement between  the parties and that in view of the award of the  Industrial Tribunal,  Delhi in  I.D. No.  46/66. The contentions about  the existence  of the  agreement and  the status of  salesmen were  res  judicata  and  could  not  be reopened  so   long  as  the  agreement  was  in  force  and operative.      The Tribunal rejected the preliminary objections raised on behalf  of the  union and came to the conclusion that the three communications  dated January  24,1957, April  24,1957 and May 1, 1957 Ex. W-2, W-3, W-4 respectively did not spell out a  complete, concluded  agreement between the parties on the  points   mentioned  therein  but  it  was  an  inchoate agreement in  the stage of negotiations and the employer was not bound  to stand  by its  offer made in the communication dated January  24,1957 denying  itself the  right to contest the status  of the  field force  including salesmen  as  not being workman  within the  meaning of  the Act. The award of the Industrial Tribunal, Delhi in I.D. No. 46/66 in which it was held  that there  was a  concluded agreement between the parties and therefore the industrial disputes raised therein could not  be adjudicated  at Delhi  did not  operate as res judicata because  the issue  in that  award was not directly and substantially  in issue  in the  present reference.  The Tribunal set down the reference for further hearing.      Allowing the Appeal: ^      HELD:  1.  The  Tribunal  committed  a  serious  error, apparent on  record in  holding that  there was no concluded agreement between  the parties as emerging from Exs. W-2, W- 3, and W-4. [329 F]      In  the  instant  case,  having  meticulously  examined various references pertaining to various industrial disputes between the  parties at different centres in India since the agreement  in   1957  it  unquestionably  emerges  that  the employer  till   the  present   reference  never  once  even whispered that  the agreement  was not a concluded agreement or that  it was an inchoate one left hanging at the stage of negotiations. It  was only  in  the  present  reference  the contention raised was that the agreement was not a concluded agreement. The  employer which  swore by  the agreement  and repeatedly  succeeded   in  getting   thrown   out   certain references at  the threshold  on account  of  the  agreement contended  that   there  was  no  concluded  agreement,  and ignoring the  whole history, the Tribunal fell into an error in accepting  this contention.  The Tribunal  wholly ignored the fact  that it was a solemn agreement, of which effective and wholesome  advantage had  been taken by the employer and when it  did not  suit it,  it wanted  to turn round and not only repudiate  it but  disown it.  No court  of justice can ever permit such a thing to be done. [324 E-325 B]      Hindustan Lever  Ltd. v. Ram Mohan Ray & Ors., [1973] 3 S.C.R. 624;  Western India Match Co. v. Their Workmen [1964] 3 S.C.R. 560 at 566; and Aluminium Factory Workers, Union v. Indian Aluminium Co. Ltd. [1962] 1 L.L.J. 210, referred to      2. The Tribunal is directed to proceed to determine the dispute  on   merits  without  concerning  itself  with  the consideration of  the question whether the concerned workmen

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 20  

were workmen  within the meaning of the expression under the Act. [332 E]      3. The concept of compulsory adjudication of industrial disputes was statutorily ushered in with a view to providing a forum and compelling the parties 309 to resort  to the  forum  for  arbitration-so  as  to  avoid confrontation and  dislocation  in  industry.  A  developing country like  India can ill-afford dislocation in industrial production. Peace  and harmony in industry and uninterrupted production being  the demands of the time, it was considered wise to  arm the Government with power to compel the parties to resort  to arbitration  and as  a necessary  corollary to avoid  confrontation  and  trial  of  strength,  which  were considered wasteful  from national and public interest point of view.  A welfare  State can ill-afford to look askance at industrial unrest and industrial disputes. [326H-327B]      Dahyabhai    Ranchhoddas     Shah     v.     Jayantilal Mohanlal.,[1973] Lab. & Industrial Cases 967 referred to.      4. The  Act did  not confer  till the  introduction  of Chapters V-A and V-B, any special or enforceable benefits on the workmen.  The  Act  was  designed  to  provide  a  self- contained Code to compel the parties to resort to industrial arbitration for  the resolution  of existing  or apprehended disputes without  prescribing statutory norms for varied and variegate industrial  relation, so  that the  forums created for resolution  of disputes  may remain  unhampered  by  any statutory control  and devise  rational norms  keeping place with improved  industrial relations  reflecting and imbibing socioeconomic justice.  If this  is  the  underlying  object behind enactment  of the  Act, the  Court by  interpretative process must  strive to  reduce the  field of  conflict  and expand the  area of  agreement and  show its  preference for upholding agreements  sanctified by  mutuality and consensus in larger  public  interest,  namely  to  eschew  industrial strife, confrontation and consequent wastage. [327 C-E]      5. It  is  inappropriate  to  usher  in  the  technical concept of res judicata pervading the field of civil justice into the  field of  industrial  arbitration.  The  principle analogous to  res judicata  can be availed of to scuttle any attempt  at   raising  industrial   disputes  repeatedly  in defiance of  operative  settlements  and  awards.  But  this highly technical  concept of  civil justice  may be  kept in precise  confined   limits  in   the  field   of  industrial arbitration which  must as far as possible be kept free from such technicalities  which thwart  resolution of  industrial disputes. [326 D-G]      Shahdara (Delhi)  Sharanpur Light  Railway Co.  Ltd. v. Shahdara(Delhi) Sharanpur  Railway Workers  Union, (1969)  1 L.L.J. 734  at 742; and Workmen of Straw Board Manufacturing Co. Ltd.  v. M/s Straw Board Manufacturing Co. Ltd. [1974] 3 S.C.R. 703 referred to.      6. Unilateral  repudiation is distinct from termination and an  agreement/settlement remains  in force  and  binding till terminated  and does  not come  to an end by unilateral repudiation. [328 E]      In the  instant case, the parties entered into a solemn agreement. It  is not  suggested that the agreement has been terminated. The  only argument  put forward on behalf of the employer was  that the union has repudiated the agreement by raising disputes  of an all-India nature at a regional level and  thereby   committed  breach   of  the  agreement.  This contention is  entirety without merits. What has happened is that the  Union raised  certain disputes  which according to the Union  were of  a regional  nature and  which it was not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 20  

estopped from  raising in  the teeth  of the  terms  of  the binding agreement between the parties. On the other hand the employer contended  that the  disputes so  raised were of an all-India nature.  Both sides  swore by  the agreement,  the difference in  approach being  whether the dispute was of an all-India nature  or of  regional nature.  The divergence in approach 310 was as  to the  interpretation, the  coverage, the ambit and the width  of the  agreement Both  the parties  swore by the agreement but  differed in their approach and interpretation and the  forum namely  the Industrial  Tribunal consistently upheld at  the instance  of the  employer that  there was  a binding valid agreement subsisting between the parties. This constitutes  adherence  to  agreement,  performance  of  the agreement, implementation  of the  agreement and being bound by the  agreement. This  conduct in  no sense can be said to constitute repudiation. [327 F-328 C]      7. The  Tribunal derives  its jurisdiction by the order of  reference   and  not   on   the   determination   of   a jurisdictional fact  which it  must of  necessity decide  to acquire jurisdiction. [330 G]      8. In  industrial adjudication, issue are of two types: (i) those  referred by  the Government for adjudication  and set out  in the  order of  reference,  and  (ii)  incidental issues involving  mixed questions  of  law  and  facts.  The Tribunal may  frame preliminary issues if the point on which the parities  are at variance, go to the root of the matter. But the  Tribunal cannot  travel beyond  the  pleadings  and arrogate to  itself the  power to  raise  issues  which  the parties to the references are precluded from raising. If the employer does  not question  the statues of the workmen, the Tribunal cannot  suo motu  raise the  issue and  proceed  to adjudicate upon the same and throw  out the reference on the sole ground  that the  concerned workman  was not  a workman within the  meaning of the expression under the Act. [331 G- 332 A]      9. Whether  a particular  person is  a workman  or  not depends upon factual matrix. Workman is defined in Sec. 2(s) of the  Act.  The  ingredients  and  the  incidents  of  the definition when  satisfied, the  person satisfying  the same would be  a workman.  Negatively if someone fails to satisfy one or  other ingredient  or incident  of the definition, he may not  be held  to be  workman within  the meaning  of the expression in the Act. [330 C]      10. There  is no provision in the Act which obliges the Industrial Tribunal  or other forums set up under the Act to decide  even  in  the  absence  of  a  contention  from  the employer, a  preliminary issue  whether the  person who  has invoked its  jurisdiction is  a workman  or not. There is no such obligation  cast statutorily  on the  Tribunal. If  the employer does  not raise  the contention about the status of the workman  approaching the  Tribunal, the  Tribunal has no obligation to decide. The status of the person whether he is a  workman   or  not.  The  Tribunal  must  proceed  on  the assumption that no such contention is raised and is required to be adjudicated upon. [330 D-F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1865 of 1982      Appeal by  Special leave  from the Order dated the 24th December, 1981  of the Labour Court, Delhi in ID. No. 120 of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 20  

1977.      M.K. Ramamurthi,  V.P. Choudhary Jitendra Sharma and P. Gaur, for the Appellant.      G.B. Pai,  O.C. Mathur,  D.N. Mishra,  S. Sukumaran and Ms. Meera Mathur, for the Respondent. 311      The Judgment of the Court was delivered by      DESAI, J. If solemn agreements proposed by the employer and readily acceeded to by the workmen and holding the forte for over  a  quarter  of  a  century  are  crudely  disowned compelling the  workmen to  knock at  the door  of the  apex court for  removing the  road-block in the access to justice set  up   by  preliminary  objection  of  technical  nature, industrial peace  and harmony  chanted by the employer would be not  merely an  empty mantra  but a  futile  exercise  of chasing a  mirage and  unfortunately that  is the  situation here.      Hindustan  Lever   Ltd.,  a   multi-national   company, respondent herein  addressed a  communication dated  January 24, 1957  recording the  out-come  of  mutual  deliberations between the  Hindustan Lever  Ltd. (employer’ for short) and the  Hindustan  Lever  Mazdoor  Sabha  (’union’  for  short) recognised representative  union of  the workmen employed by the employer. The relevant portion may be extracted:      "Ex. W-2                             24th January, 1957      The President,      Hindustan Lever Mazdoor Sabha,      Bombay.      Dear Sir,      Referring to  our recent  meeting about field force, we would like to place on record that:      (1)  We recognise  you as  the representative union for           all sections of field force all over India.      (2)  You have  agreed to  treat all matters relating to           wages/salaries and terms and conditions of service           on an  all India basis and not on a regional basis           as far as field force is concerned.      (3)  For all matters of an all-India nature relating to           field  force,   you  will   communicate  with  the           Personnel Director.  We hope that all such matters           will be  settled by  direct negotiation  but if at           any stage  you  decide  to  refer  the  matter  to           conciliation, you  will do  so only at Bombay. We,           on our  part, give  you the  assurance that if the           matter 312           is referred to a Tribunal in Bombay then its award           will be  applied by  you to  field force  all over           India. For  this reason,  you will  agree that  it           will be  only proper  for the  Tribunal to examine           the matter in an all India perspective.      4)   Although we  do not  anticipate any  problems of a           purely local  nature, in  case  such  problems  do           arise your  members will  first try to arrive at a           solution by  approaching their own managers and if           this fails,  your local Committee should refer the           matter to  the local  Commercial Manager or Office           Manager.      5)   For future  disputes we  shall not  contest issues           about field  force on the basis of their not being           ’workmen’ but  shall contest  issues only  on  the           merits  in  the  same  way  as  we  do  for  other           employees.           Please confirm  that you  agree  with  the  points      mentioned above.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 20  

                                          Yours faithfully,                                            Sd/- B.K. Bindani      The union  responded to  this communication  as per its letter dated April 24, 1957 which reads as under:      "Ex. W.3      The Personnel Manager,      Hindustan Lever Limited,      Scindia House,      Ballard Estate,      Bombay-1.                              24th April, 1957      Dear Sir,           With reference  to your letter Personnel KSB/BN/49      dated 24.1.1957 and in the light of further discussions      we had  with you on the subject, we would like to state      as under:      1.   We  thank   you  for   recognising   us   as   the           Representative Union for all sections of the Field           Force employees all over India. 313      2.   We agree  that certain  major  issues  such  as  a           salary wages,  bonus,  provident  fund,  Gratuity,           leave etc.  will be  treated as far as possible on           an all-India basis.      3.   We agree  that for  all matters  of  an  all-India           nature, we  will communicate  with  the  Personnel           Director. As  for the  other points raised by you,           we agree  to  follow  the  procedure,  as  far  as           legally permissible.      4.   Local matters,  if not  settled  by  negotiations,           will  have   to  be   dealt  with  otherwise.  For           instance, the  Sabha may go in for conciliation or           may be  free to  resort to  any  other  legitimate           and/or peaceful method.      5.   We are  indeed glad  to note  that  you  will  not           contest issues  about field  force on the basis of           their not  being ’Workmen’  but you  will  contest           issues only on their merits in the same way as you           do for  other  employees.  We  wish  to  take  the           opportunity also to confirm your agreement with us           that in  regard to demands relating to Field Force           contained  in  Ref.  N.48  of  1956,  now  pending           adjudication at  Delhi, you  will not  contest the           issue on  the basis  of their  not being ’Workmen’           but you  will contest  the issue  on the merits of           the demands as you do for other employees.                                            Yours faithfully,                                     Sd/- P. Pullat President                                            1st May, 1957"      A further  communication ensued from the employer dated May 1,  1957. It  is not necessary to reproduce the whole of it save  and except  that the  employer wanted to be assured that the  union by  its communication  dated April  24, 1957 unequivocally intended  to confirm  the items  of  agreement relating to various items of industrial disputes between the parties as  set out  in its  communication dated January 24, 1957 and  further sought  clarification of  the  two  points raised by the union.      The substantial  question is  whether there  emerged  a concluded agreement  between the  parties and binding on the parties till it is terminated according to law? The question of the  existence of  a concluded agreement and its validity arises in the following circumstances. 314      Shri A.K.  Sircar and  Shri R.L.  Gupta were  protected workmen  within   the  meaning  of  the  expression  in  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 20  

Industrial Disputes  Act, 1947  (’Act’ for  short) and  were admittedly the  office-bearers of the union and consequently leaders of  the workmen.  The employer served a charge-sheet on Shri A.K. Sircar on April 10, 1974 and on the next day, a charge-sheet was served on Shri R.L. Gupta. There followed a disciplinary enquiry  and ultimately  the services  of  Shri A.K. Sircar  and Shri  R.L. Gupta  were  terminated  by  the employer. The  union raised an industrial dispute contending that the  termination of  services of the aforementioned two workmen was  illegal and invalid and the enquiry was equally illegal and improper and that the action of the employer was an act  of reprisal  and victimization because of the trade- union activities of the aforementioned two office-bearers of the  union:   The  appropriate   Government   referred   the industrial dispute  to the  Industrial Tribunal  on July 16, 1977.      The  employer  in  its  written  statement  inter  alia contended that Shri A.K. Sircar and Shri R.L. Gupta were not workmen within  the meaning of the expression in the Act and therefore the  appropriate Government had no jurisdiction to refer  the   dispute  to   the   Industrial   Tribunal   and consequently the  Industrial Tribunal had no jurisdiction to hear and  deal with  the reference. It was further contended that in  a reference  between the  employer and the union in another dispute  to the  Industrial Tribunal  in Maharashtra State, a contention was raised by the employer that salesman of the  employer is  not a workman within the meaning of the expression in  the Act  and this objection was upheld by the Industrial Tribunal and a petition for special leave against the decision of the Industrial Tribunal to the Supreme Court was rejected  on October  1, 1975.  It was further contended that the  services of  the aforementioned  two workmen  were terminated not  by way  of punishment but under the contract of service  and the disciplinary enquiry which was commenced earlier was subsequently dropped.      The union in its counter-affidavit inter alia contended that the  employer was  estopped from challenging the status of the two concerned workmen as not being workmen within the meaning of  the expression  in  the  Act  on  account  of  a subsisting valid  concluded agreement  between  the  parties inter alia  providing that the employer will not contest the issue about status of field force (which expression includes salesman) on  the basis of their not being workmen but shall contest the issue only on the merits in the same way as they do for  other employees.  It was also contended that in view of Shri Roop 315 Chandra award the issue about existence of the agreement and the status  of  salesman  is  res  judicata  and  cannot  be reopened till the agreement remains in force and operative.      The rival  pleadings led  to  the  Industrial  Tribunal framing the following issues:      "1)  Whether   the    management   is   estopped   from           challenging the  status  of  these  two  concerned           workmen as  "workman’ within  the meaning  of  the           Industrial Disputes Act.      2)   Whether the award dated 17-11-66 of the Additional           Industrial Tribunal,  Delhi would  operate as  res           judicata between the parties ?      3)   If issue No. 1 is answered in the negative whether           the  concerned  (sic)  are  ’workman’  within  the           meaning of the I.D. Act ?      4)   What is  the effect  of  the  order  dated  6-1-75           passed by the I.T. Maharashtra in reference 203 of           1973 and  order dated  1.10.1975  of  the  Supreme

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 20  

         Court in Petition for special leave 1602 of 1975 ?      5)   Whether the  reference is  incompetent and  bad in           law for  reasons  mentioned  in  prel.  objections           (III), (IV), (V) and (VII) and (VIII) ?           Issue Nos.  1,2, 4 and 5 were directed to be heard as preliminary  issues.  On  Issue  No.  1,  the  Industrial Tribunal held  that the  three communications  Ex.W-2  dated January 24,  1957, Ex.  W-3 dated April 24, 1957 and Ex. W-4 dated May  1, 1957  did not  spell out  a complete concluded agreement between  the parties on the points set out therein but  it   was  an   inchoate  agreement   in  the  stage  of negotiations and  therefore the  employer was  not bound  to stand by  its offer  made in the communication dated January 24, 1957  denying to  itself the right to contest the status of the  field force  including salesman as not being workman within the  meaning of  the expression  in the Act. On Issue No. 2,  it was  held that  the award of Shri Roop Chandra in I.D. No.  46 of  1966 in  which it was held that there was a concluded agreement between the parties as disclosed in Exs. W-2, W-3  & W-4 and therefore the industrial dispute therein raised could  not be  adjudicated upon at Delhi, it being an All-India dispute  and ought  to have been raised at Bombay, did not operate as res judivata 316 because  the  issue  in  the  award  was  not  directly  and substantially in issue in the present reference. Parties did not advance  any  argument  on  Issues  Nos.  4  and  5  and therefore with  reference  to  Issue  No.  4,  the  Tribunal observed that  the same  may  not  be  disposed  of  without further hearing  the parties  and no finding was recorded on Issue  No.   5.  The   Tribunal  accordingly   rejected  the preliminary objections raised on behalf of the union and set down the reference for further hearing. Hence this appeal by special leave by the union.      At the  outset, we  must record  our unhappiness on the attitude adopted  by the  employer in  contending as late as 1981 that the three communications Exs. W-2, W-3 and W-4 did not constitute  a concluded  agreement between  the  parties with respect  to the points settled therein and the Tribunal ignoing the  history and  repeated advantage  taken  by  the employer of  this concluded  agreement on numerous occasions accepted the  contention of  the employer.  IT is  therefore necessary first  to point  out how from 1957 till as late as 1966 and  even thereafter the employer non-suited the union, if that  is a  proper term, by setting up the very agreement which now  the employer  wants to  urge that  it  is  not  a concluded agreement.  The three  important  clauses  of  the agreement emerging  from the  correspondence relevant to the present dispute  are that  (i) the  Hindustan Lever  Mazdoor Sabha was  recognised by  the employer  as a  representative union for  all sections of field force all over India in the employment of  the employer  and (ii)  the union  agreed  to bring all  matters relating  to wages/salaries and terms and conditions of  service on  an All-India  basis  and  not  on regional basis  as far as field force is concerned and (iii) that in future disputes, the employer will not contest issue about member  of the  field force  being workmen  but  shall contest issues  only on  their merits in the same way as the employer would  do for other employees. Freed from technical jargon, the  employer agreed and undertook not to contest in any industrial  dispute the status of the field force as not being workman  within the  meaning of  the expression in the Act and  that reference,  if any,  would be contested on the merits  of  the  industrial  dispute  in  respect  of  which reference is  made to  the Industrial Tribunal. The out-come

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 20  

of the  agreement would be that if a dispute of an all-India nature in respect of the field force is raised at a regional level, founding  its contention  on one  of the terms of the agreement, the  employer would  be in  a position to get any regional reference  rejected on  the ground  that there is a subsisting valid  agreement between  the parties  that  such dispute of an all-India nature in respect of the field force can be  raised at Bombay only and within the jurisdiction of the Industrial Tribunal at Bombay only. 317 There is  no dispute between the parties that if there is an agreement such would be the out-come of it. This is not only not in  dispute but  it is  conceded that  a settlement  was arrived at  in respect  of industrial  disputes between  the employer and  the union concerning the field force including salesman in  1957, 1959 and 1964. An averment to this effect is made  in Paragraph  ’H’ of the petition for special leave and Anx.5  was annexed  to the petition which purports to be the settlement dated December 22, 1964. It is signed by Shri C.J. Mahimkar,  Joint Personnel  Manager on  behalf  of  the employer and  Shri A.K. Basu, General Secretary of the union at the  relevant time.  The various  industrial disputes  in respect of  which settlement  is arrived at were between the employer and the workmen of the company who were the members of  the  field  force  (salesmen,  sales  supervisors  etc.) employed in  any part  of India. This settlement was arrived at under  the Industrial  Disputes Act  and  was  registered according to  the requirements of the Act. This implies that the status  of the  salesman as  being  workman  within  the meaning of  the expression  of the  Act  was  not  only  not disputed but  specifically conceded  and that must obviously be pursuant  to the subsisting agreement. This is however an inference so it is better now to move on to adjudication and award by a forum with jurisdiction to decide the point.      The Chief  Commissioner of Delhi referred an industrial dispute whether  workmen whose  names were  set out  in  the order- of  reference be paid compensation in addition to the usual remuneration  for the period they had marketed Erasmic Blades and  what directions  were necessary  in this behalf. The  reference   was  between   the  employer   the  present respondent and the appellant union.      In this reference, the workmen who claimed remuneration were Delhi  based salesmen  of the  employer.  The  employer appeared and  contested the  reference. The  only  important contention raised  on behalf  of the  employer which must be noticed reads as under:           "That the  concerned workmen  are members  of  the      field force  of the  company; that the field force unit      is a separate unit known as Field Force Unit; that they      are liable  to be  transferred anywhere  in India; that      the Field  Force Unit  is controlled  by Company’s Head      Office in  Bombay;  that  it  was  agreed  between  the      company and  the Hindustan  Lever Mazdoor Sabha, Bombay      that all  matters relating to Field Force Unit would be      dealt with by both parties at Bombay on all-India basis      and if no settlement is reached, the dispute 318      shall be raised in Bombay in accordance with Industrial      Disputes Act;  and that any settlement or Award therein      would be  made applicable  and shall  be binding on all      members of  the field  force all over India." (Emphasis      supplied).      The  employer  also  contended  that  in  view  of  the agreement between  the parties,  the dispute referred to the Industrial Tribunal  regarding the  field force could not be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 20  

raised at  Delhi. It  was also contended that in view of the agreement subsisting  between the  parties, the employer had agreed not  to contest  the issue that its salesman were not workmen within  the meaning  of the expression in the Act. A further contention  was raised  that the union has committed breach of the agreement by raising the dispute at Delhi.      The union  while conceding  that there was an agreement between the parties as alleged by the employer contested the issue by  saying that  the dispute  was not  of an all-India nature as  it was  concerning only some Delhi based salesmen of the employer and therefore the dispute was not covered by the agreement.      The Industrial  Tribunal (Shri  Roop  Chandra)  on  the rival contentions  of  the  parties,  raised  the  following issues:           "ISSUES      "1)  Is there any agreement between the Company and its           workmen through  the Hindustan Lever Mazdoor Sabha           that all  matters relating to members of the field           force would  be dealt  with by both the parties in           Bombay on  an all  India  basis  and  that  if  no           settlement is reached, the dispute would be raised           in  Bombay   in  accordance  with  the  Industrial           Disputes Act ?      2)    Does  the said  agreement prevent  the workmen in           this case from raising the dispute in Delhi ?      3)    Are  the employees concerned not ’workmen’ within           the meaning  of  the  term  under  the  Industrial           Disputes  Act   ?  If  so,  has  the  tribunal  no           jurisdiction ?      4)    Whether  workmen have  committed a  breach of the           agreement  alleged   to  have  been  entered  into           between the  management and  the union in 1957 and           if so, is the 319           management not entitled to raise the plea that the           salesmen are  not ’workmen’  within the meaning of           Industrial Disputes Act. ?"      It would  thus appear  at a  glance  that  it  was  the employer who  wanted the  reference to  be rejected  on  the preliminary objection  that there  was  a  valid  subsisting concluded agreement  between the  parties which had a direct bearing on  the industrial dispute involved in the reference and that  because  of  the  agreement  and  as  a  necessary corollary of  the agreement the Tribunal had no jurisdiction to entertain the dispute.      Now  see   the  out-come  of  this  contention  of  the employer. On  Issue Nos.  1 and  2, Shri Roop Chandra as per his award  dated November 17, 1966 held that in view of Exs. W-2, W-3  and W-4 marked in evidence in the reference before him as Exs. M-1, M-2 and M-3 produced and relied upon by the management that  is the employer, the Industrial Tribunal at Delhi would  have no  jurisdiction to  entertain it.  It was never contended  by the  employer before  Shri Roop  Chandra that  the  three  documents  did  not  end  in  a  concluded agreement. On a contrary parties were ad idem that there was a concluded  agreement between  the parties.  The difference was in  their approach  as to  the applicability  of various clauses of  agreement to the dispute raised in the reference before the Tribunal. The employer contended that the dispute was of an all-India nature and therefore could not be raised at Delhi.  The union  on the  other hand, contended that the dispute was  of a  regional nature  concerning only 16 Delhi based salesmen  of the  Company and  therefore  the  dispute could not be styled as an all-India dispute.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 20  

    The Tribunal  held that the dispute was of an all-India nature, related to the duties and liabilities of all members of the  field force  employed all over India and it involved such a  major issue  as salary  and wages.  Approaching  the matter from  this angle,  the Tribunal  further held  on the basis of the agreement, that the dispute could only be taken cognizance of  at Bombay.  The Tribunal  was of  the opinion that the  agreement was valid and did not contravene Sec. 28 of the  Indian Contract Act because where the parties choose to have  the matter  entertained in  one of  the two or more courts having  jurisdiction to entertain the matter, such an agreement does  not contravene Sec. 28. The Tribunal further held that  the agreement  had the sanctity of a contract and the parties  must be  held to  the  contract.  The  Tribunal concluded by  observing that  the union was not justified in raising 320 the dispute  in Delhi  in view  of its  agreement  with  the employer as  evidence by  the three documents and that it is not expedient  in the  interest of  justice  and  peace  and harmony in  industry that the Tribunal should adjudicate the matter of  an  all-India  nature.  So  saying  the  Tribunal rejected the  reference. The  question is who took advantage and benefit  of the agreement ? Unquestionably, the employer who now decades after successfully contending before another Tribunal that  there was  a valid  and concluded  agreement, wants to  contend that the three documents Exs. W-1, W-2 and W-3 do  not spell  out a concluded agreement but an inchoate one which  remained at  the stage  of negotiations only. But that is  not the  end of  the vacillation on the part of the employer.      Mr. Pai,  learned counsel  on behalf of the employer on the other  hand  contended  that  the  union  has  expressly repudiated the  agreement and  therefore, it is not open now to the  union to  take recourse  to the  agreement.  It  was submitted that  if the  union has  committed a breach of the agreement, if  there was  any, the employer is absolved from observing or  complying with  the agreement. To substantiate this submission,  our attention  was invited  to a reference made by  the Lt.  Governor, Delhi  to the  Addl.  Industrial Tribunal constituted  for the Union Territory of Delhi, then presided over  by Shri  Hans Raj  for  adjudication  of  the following two issues:      ’1.  whether the  deduction of  leave by the management           for the  year 1967  is illegal  and/or unjustified           and if so, to what relief are the affected workmen           entitled and what directions are necessary in this           respect ?      2.   Whether  the   management  was  obliged  to  grant           special increment  to all  of its workmen in Delhi           Branch and  if so,  to what  relief  the  affected           workmen  are  entitled  and  what  directions  are           necessary in this respect ?"      The union  filed a  statement of claim and subsequently filed an  additional or  amended written  statement in which inter alia it was contended ’that the workmen of the concern throughout India  were agitated  because of this measure and its wholly  illegal implementation  and the  applicant Sabha led the  opposition of  the scheme and the resistance of the workmen to  it.’ This  averment was relied upon to urge that the union  raised a  dispute of an all-India nature at Delhi which  was   the  regional   centre  and  this  would  imply intentional breach  or repudiation  of the agreement. Before we examine this contention, 321

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 20  

it is necessary to refer to para 10 of the amended statement of claim in which the union states as under:           "That the binding nature of the agreement has been      flagrantly flouted by the Management and the very basis      of collective  bargaining for industrial peace has been      attacked."      This would  show that the union accused the employer of breach of  agreement. On the other hand, the employer in its written statement contended as under:           "No claim  on behalf of the employees of the Field      Force can be taken up by Hindustan Lever Mazdoor Sabha,      Delhi  Centre   and  this   Hon’ble  Tribunal   has  no      jurisdiction to  entertain  the  same  in  view  of  an      agreement arrived  at and  between the  Company and the      Hindustan    Lever     Mazdoor    Sabha    in    1957."      (emphasis supplied)      It would  be crystal clear that the employer wanted the reference to be rejected at the threshold on the preliminary objection that  in view  of the  concluded binding agreement between  the   parties,  the   dispute   referred   to   for adjudication being  of an  all-India nature,  the union  was precluded from  raising the same at a regional level and the Tribunal had  no jurisdiction  to entertain  the same. Apart from the  extracted specific  contention in paragraphs 5 and 6, the  contention is  elaborated by the employer and it was specifically contended that in the award dated Nov. 17, 1966 by Shri  Roop Chandra,  Addl. Industrial Tribunal, Delhi, it was held that a valid agreement was in existence between the parties and  no dispute  pertaining to  the members  of  the Field Force  can be  raised anywhere  except in the State of Maharashtra. It was further contended that the award of Shri Roop Chandra  was confirmed  by the  High Court  of Delhi by summarily dismissing  the Writ Petition No. 1163/67 filed by the union  against the  award and  when the union approached the Supreme Court in Appeal No. 42/68, the same was rejected thereby affirming the existence and binding character of the agreement. These  assertions by  the employer  flow from the pleadings. To revert to the narration, Shri Hans Raj proceed on leave  and then  retired and when a new Presiding Officer was appointed,  the reference  with one application filed by the union  to summon  certain documents  came up  before the Tribunal. By  a laconic order, unsupported by any reasoning, the Tribunal  observed that the salesmen are not workmen and so the  documents need not be summoned. It was this order on the application which was chal- 322 lenged in  the writ  petition filed  by  the  union.  It  is difficult to  appreciate what permitted the Tribunal to hold that the  salesmen are not workmen within the meaning of the expression in  the Act  and why  it  did  not  consider  the specific contention  that the  employer  was  estopped  from raising the  contention as  to the status of the salesmen in view of  the binding  agreement between the parties. But for the present  purpose, it  is sufficient  to notice  that the employer and  the union  both swore  by the agreement and at any rate  the employer  never contended  that there  was  no concluded agreement  between the parties covering one of the points in  the dispute  namely, the status of the members of the Field Force including salesmen.      Mr. Pai  next turned  to another  round  of  litigation between  the   parties.  It   appears  that  effective  from September 6,  1966, the  employer reorganised  its marketing organisation into two divisions, the Main Lines Division and the Speciality  Lines Division.  The Calcutta  Branch of the employer was  concerned only  with marketing. The workmen at

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 20  

Calcutta were directly affected by the reorganiszation. On a dispute raised  by the  union, the Government of West Bengal referred the  following  dispute  for  adjudication  to  the Industrial Tribunal           "Is the  human rationalisation  as  a  measure  of      economic  reorganisation   of  the   company  reflected      through job-integration  that have either been effected      or proposed to be effected justified ?"      Pending adjudication of the dispute, some workmen filed applications under  Sec. 33A  of the Industrial Disputes Act before the Tribunal alleging that during the pendency of the adjudication  their  service  conditions  had  been  altered adversely and  their salary  for the  month of October, 1966 had not  been paid. The Tribunal granted the applications of the workmen and the employer approached the Supreme Court by special leave. The main reference was finally disposed of in favour of  the  employer  upholding  the  reorganisation  of marketing organisation. The union questioned the correctness of this  award before  the Supreme Court. Both the groups of appeals came  up for  hearing together  and the  decision of this Court  is reported in Hindustan Lever Ltd. v. Ram Mohan Ray &  Ors. This  Court upheld  the right of the employer to organise and  reorganise its  work in the manner it pleases. Accordingly the appeals filed by the union were rejected. 323 The appeals  filed by  the employer  against  the  award  in favour of  the workmen  in the  applications under  Sec. 33A were equally rejected by this Court holding that non-payment of wages  in the  circumstances of  the case  amounts to  an alteration in  the  conditions  of  service.  Frankly,  this decision sheds  no  light  on  the  point  under  discussion because neither  side relied  upon the agreement nor did the agreement  figure   into  the   dispute.  However,   it   is interesting to  note that when the main reference was before the Tribunal,  a preliminary  objection was raised on behalf of the  employer to  the effect that by an agreement entered into in  January 1957 by and between the employer and union, it was  agreed that  all matters  relating to the matters of the outdoor  marketing staff,  to wit  members of  the field force can  be raised  at Bombay only and as such the company as well  as the  Sabha are bound by the aforesaid agreement. Therefore, not only the employer affirmed the agreement, did not contend  that it  was an  inchoate one  but specifically placed that  it is a concluded binding agreement between the parties.      It appears  that there  was one more reference I.D. No. 43/72 between  the parties  at Delhi. Following the decision of this  Court  in  the  case  just  herein  discussed,  the reference was rejected.      Mr. Pai  next referred  to an order in Reference (I.D.) No. 203/70  by the  Industrial Tribunal  Maharashtra between the employer  and the workmen-employees under it. The demand which was referred for adjudication included revision of pay scales with  adjustment, revision  of the wage-scale of sub- clerical grade, gratuity disturbance allowance/and settling- in-allowance to  the office staff, allowance to office staff while  on  tour,  acting  allowance,  overtime  wages,  cash allowance and  leave travel  facilities. The employer raised number  of  preliminary  objections,  one  such  being  that Salesmen, Marketing  Research Investigators, Market Research Supervisors, Sales  Supervisors, Trade  Marks Investigators, Seed Buyers  and  Supervisors  of  clerical  staff  are  not workmen within the meaning of the expression in the Act, and hence no  industrial dispute  can be  raised on their behalf and  consequently   the  Tribunal  had  no  jurisdiction  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 20  

adjudicate  upon   the  same.   The  union   countered  this preliminary objection by asserting that the contention about the status of the aforementioned categories is barred by the principle of  res judicata  in view of the award dated April 13, 1967  made by  the 3rd Industrial Tribunal, West Bengal. The Tribunal  rejected the contention of the union observing that the  dispute between them is not of an all-India nature and  therefore,  the  employer  is  entitled  to  raise  the question about the status of the work- 324 men included  in the  aforementioned categories.  This would imply that the reference was rejected not on the ground that there was  no agreement  but on  the ground that the dispute involved in  the reference was not covered by the agreement. In the  same reference,  a plea of estoppel raised on behalf of the union to the effect that the company was precluded in view of the subsisting agreement from questioning the status of  the  salesmen  and  allied  categories  as  workmen  was overruled by  the Tribunal  observing that Exs. W-2, W-3 and W-4 leave  no doubt  that the  employers’ agreement  not  to dispute the  status of the Field Force was only on the clear understanding that  it will  be so,  if dispute is raised on all India basis. The Tribunal then observed that the dispute admittedly was  not  an  all-India  dispute  and  therefore, rejected the plea of estoppel.      It is  at this  stage necessary  to refer  to one  more reference between  the parties  being I.T.  No. 233/67.  The dispute referred  to was a demand by the workmen to withdraw the reorganisation  integration imposed  on the  Supervisors attached to  the Sales  Department and impending in the case of Field  Force (Salesmen)  and other  staff attached to the Sales,  Accounts,  Transport  and  allied  department.  This demand was  rejected by  the Tribunal following the decision in Hindustan  Lever Ltd. v. Ram Mohan Ray & Ors. (supra) The rejection of  the demand  has no  impact at all on the point under discussion.      Having   meticulously   examined   various   references pertaining to various industrial disputes between he parties at different  centres in  India since the agreement in 1957, it unquestionably emerges that the employer till the present reference never  once even  whispered that the agreement was not a  concluded agreement  or that  it was  an inchoate one left hanging  at the  stage  of  negotiations.  But  in  the present  reference   the  contention  raised  was  that  the agreement was  not a concluded agreement because that is how the Tribunal  has approached  the problem.  The Tribunal has observed in this behalf as under:           "According to  the management the three letters do      not constitute  an agreement  because in  an  agreement      there should be an offer and the offer must be accepted      as such. They have argued that the offer made in Ex. W-      2  have   not  been   accepted  as   such  in  Ex.  W-3      ......................"      The  employer   which  swore   by  the   agreement  and repeatedly  succeeded   in  getting   thrown   out   certain references at the threshold on account of the agreement, now wants to contend that there was no 325 concluded agreement,  and ignoring  the whole  history,  the Tribunal falls  into an  error in accepting this contention. The weight  of evidence  not only  not at all referred to by the  Tribunal   but  frankly   wholly  ignored  clearly  and unmistakably leads  to one  and one  conclusion  alone  that according to  the employer there was the concluded agreement between the parties. It is a solemn agreement, the agreement

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 20  

of which effective and wholesome advantage has been taken by the employer  and when it now does not suit it, it in breach of the  solemn agreement  wants to  turn round  and not only repudiate it  but disown  it as  having never  been  entered into. No Court of justice can ever permit such a thing to be done.      Mr. Pai,  however, raised  a very  technical contention that the  preliminary objection raised by the union that the employer is  estopped from  questioning the  status  of  the salesmen or  members of  the Field  Force being  not workmen within the  meaning of  the expression  in the  Act must  be rejected either  on the  principle of  issue of  estoppel or promissory estoppel  and neither of the three contentions is available to  the union notwithstanding the fact whether the agreement exists  or stands  repudiated and  therefore,  the Tribunal was  justified in  rejecting the  contention of the union. Mr. Pai in support of the submission urged that at no time as  the status  of the salesmen as not being workmen or otherwise was  ever directly  and substantially  in issue in earlier references,  the issue  cannot be  rejected  on  the ground of res judicata and at any rate there was no decision on this  issue and therefore the principle of issue estoppel cannot preclude  the employer  from raising  the contention. Mr. Ramamurthi,  on the other hand, contended that it is not the contention  of the union that the issue about the status of the  salesmen is res judicata but what is res judicata is the existence  and binding  character of the agreement which was directly  and substantially in issue between the parties in the award given by Shri Roop Chandra and in various other awards.      In  order   to  appreciate   rival  contentions  it  is necessary  to  focus  attention  on  the  issues  framed  by Industrial Tribunal presided over by Shri Roop Chandra in I. D. No. 46 of 1966. These issues have been extracted earlier. The most important issue was Issue No. 1 about the existence of a  binding agreement  between  the  parties  which  would preclude the  employer from  ever questioning  the status of the salesmen  till the agreement remains subsisting and till it is  terminated. The  issue was:  ’is there  any agreement between the company and 326 its workmen  covering inter  alia  the  question  about  the status of  salesmen? And  the answer  was: ’there  is such a valid and subsisting agreement and that position was adopted by none  other than  the employer and the employer succeeded in getting  the reference thrown-out at the threshold on the ground that  in  view  of  the  subsisting  valid  agreement between the  parties, the  union was estopped from raising a dispute of  an all-India  nature at  a regional level and it can only  be raised  at Bombay and therefore, the Industrial Tribunal at Delhi had no jurisdiction to entertain the same. Even if  the technical principle of res judicata is imported in the field of industrial adjudication, the issue about the existence of  an agreement was substantially and directly in issue between the parties in the earlier proceedings and was decided  in  the  affirmative  that  there  exists  such  an agreement. In  the reference  from which  the present appeal arises,  the  employer  contended  that  there  is  no  such concluded agreement  as pleaded by the union, and therefore, the issue that arises is: whether there is such an agreement as pleaded on behalf of the union. But that was the specific issue in  Reference I.D.  No. 46  of 1966  between the  same parties. To  that extent,  one can say that unless change of circumstances  are  established,  the  issue  would  be  res judicata. But  we consider it inappropriate to usher in this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 20  

technical concept  of res  judicata pervading  the field  of civil justice  into the field of industrial arbitration. The apprehension was  voiced by  this Court  in Shahdara (Delhi) Saharanpur  Light  Railway  Co.  Ltd.  v.  Shahdara  (Delhi) Saharanpur Railway Workers Union (1) when it said that it is doubtful whether  the principles  analogous to  res judicata can properly  be applied  to industrial adjudication. We are not unaware  of the  legal position  that principle  of  res judicata was invoked and applied by this Court in Workmen of Straw Board  Manufacturing Co.  Ltd.  v.  M/s.  Straw  Board Manufacturing Co.  Ltd.(2) One can safely say that principle analogous to  res judicata  can be availed of to scuttle any attempt  at   raising  industrial   disputes  repeatedly  in defiance of  operative  settlements  and  awards.  But  this highly technical  concept of  civil justice  may be  kept in precise  confined   limits  in   the  field   of  industrial arbitration which  must as far as possible be kept free from such technicalities  which thwart  resolution of  industrial disputes. We  however proceed  on  the  assumption  that  an industrial  dispute   may  be   rejected  on  the  principle analogous to  res judicata. The matter however may be looked at  from   a  slightly   different  angle.  The  concept  of compulsory   adjudication   of   industrial   disputes   was statutorily ushered in with a view to providing a forum 327 and compelling  the parties  to  resort  to  the  forum  for arbitration so  as to avoid confrontation and dislocation in industry. A  developing country  like India  can  ill-afford dislocation in  industrial production.  Peace and harmony in industry and  uninterrupted production  being the demands of the time,  it was considered wise to arm the Government with power to  compel the parties to resort to arbitration and as a necessary  corollary to  avoid confrontation  and trial of strength which  were considered  wasteful from  national and public interest  point of  view. A  welfare State  can  ill- afford to  look askance  at industrial unrest and industrial disputes. (See  Dahyabhai  Ranchhoddas  Shah  v.  Jayantilal Mohanlal(1). The Act did not confer till the introduction of Chapters V-A  and V-B,  any special  benefits or enforceable benefits on  the workmen.  The Act was designed to provide a self-contained Code  to compel  the  parties  to  resort  to industrial arbitration  for the  resolution of  existing  or apprehended disputes without prescribing statutory norms for varied and  variegated industrial relation norms so that the forums,  created  for  resolution  of  disputes  may  remain unhampered by  any statutory  control  and  devise  rational norms  keeping  passe  with  improved  industrial  relations reflecting and  imbibing socioeconomic  justice. If  this is the underlying  object behind enactment of the Act the Court by interpretative process must strive to reduce the field of conflict and  expand the  area of  agreement  and  show  its preference for  upholding agreements sanctified by mutuality and consensus  in larger  public interest,  namely to eschew industrial strife, confrontation and consequent wastage.      The  parties   in  this  case  entered  into  a  solemn agreement. It  is  not  for  a  moment  suggested  that  the agreement has been terminated. The only argument put forward on behalf  of the employer was that the union has repudiated the agreement  by raising disputes of an all-India nature at a  regional  level  and  thereby  committed  breach  of  the agreement. This  contention is entirely without merits. What has happened is that the union raised certain disputes which according to  the union  were of a regional nature and which it was  not estopped  from raising in the teeth of the terms of the  binding agreement  between the parties. On the other

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 20  

hand the employer contended that the disputes so raised were of an  all-India nature.  Both sides  swore by the agreement the difference  in approach being whether the dispute was of an all-India  nature or  of regional  nature.  The  emerging situation would  be that  neither the  union repudiated  the agreement nor  the employer  and till  the present  dispute, both swore by the agreement. The divergence in 328 the approach  was as to the interpretation the coverage, the ambit and the width of the agreement. Both the parties swore by  the   agreement  but  differed  in  their  approach  and interpretation and  the forum namely the Industrial Tribunal consistently upheld  at the  instance of  the employer  that there was  a binding  valid agreement subsisting between the parties forbidding  the union  from raising  a dispute of an all-India   nature at  the regional  level and  succeeded in getting the  reference thrown  out at  the threshold  on the ground that  the dispute  was of an all-India nature and not of  a  regional  level  as  contended  by  the  union.  This constitutes  adherence  to  agreement,  performance  of  the agreement, implementation  of the  agreement and being bound by the  agreement. This  conduct in  no sense can be said to constitute repudiation of agreement by the union. Unilateral repudiation of  an agreement,  as contended by Mr. Pai, does not result  in termination of a solemn agreement because the wrongful repudiation  can be  corrected  by  enforcement  of agreement through  machinery provided  by the  statute.  And that is  what the  employer has  succeeded in achieving. The employer relying on the agreement got a number of references rejected  on   the  preliminary  objection  founded  on  the agreement. The  employer cannot  therefore be  heard to  say that the attempted repudiation by the union, if any, permits the employer to disown the same when it suits it. Unilateral repudiation   is    distinct   from   termination   and   an agreement/settlement  remains  in  force  and  binding  till terminated and  does  not  come  to  an  end  by  unilateral repudiation. But  it must  be made  clear that  there is  no substance in  the contention  of  Mr.  Pai  that  the  union repudiated the  agreement. If thus the employer swore by the agreement relied  upon it  and  successfully  contested  the claim of  the union  it cannot  now be permitted to back out from such  solemn agreement  and apart from the technicality of  the   issue  being   res  judicata  or  issue  estoppel, industrial  peace   and  harmony  good  behaviour  and  fair relation with  workmen  estopes  the  employer  from  either repudiating the  agreement or  contending that the agreement was not  a concluded  agreement but an inchoate one. In this connection we  may profitably  refer to  Western India Match Co. v.  Their Workmen(1)  wherein  this  Court  observed  as under:           "It is  not  out  of  place  to  mention  in  this      connection  that   on  some   previous  occasions   the      management  itself  has  treated  these  categories  as      workmen within  the  meaning  of  the  U.P.  Industrial      Disputes Act. The management’s contention that 329      the Tribunal has erred in thinking that the inspectors,      salesmen and retail salesmen are workmen must therefore      be rejected."      Same view  was adopted  in Aluminium  Factory  Worker’s Union v.  Indian Aluminium  Co Ltd.(1)  In that case certain correspondence which  passed before  and  after  the  awards between the  parties was  referred to.  This  correspondence showed that the appellant/union and the staff association of the company  fully accepted  the principle  that Supervisors

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 20  

would no  longer be regarded as workmen and that Supervisors had resigned  from membership  of the  workmen unions. These averments in  the correspondence regarding the status of the Supervision being  not workmen was held binding  between the parties and  both the  Industrial Tribunal  and  this  Court declined to  examine the  contention  about  the  status  on merits If  the union  can be  held bound to such an inferred agreement from  correspondence, the  employer conceding  the status or  to be precise conceding not to contest the status of salesmen  would equally  be binding  on the  employer. It would thus  appear that  the employer  management  was  held bound not  by any specific agreement but an agreement spelt- out of  its conduct  in Western  India Match  Co.  case  and assertions in  correspondence   in India  Aluminium Co. case treating certain categories of the workmen as workmen or not as workmen or not as workmen respectively within the meaning of the  expression in  the Act  then at  a later  stage  the employer and  the  union  respectively  were  estopped  from contending to  the contrary.  The case  before  us  is  much stronger in  that there  is a  concluded  binding  agreement between the  parties neither  repudiated nor terminated till today which  provides that the employer on its part will not contest the  status of  the membership  of the  Field  Force including the  salesmen employed  by the  Company as workmen within the  meaning of  the expression in the Act. Therefore the Tribunal  committed a serious error apparent on recorded in holding that there was no concluded agreement between the parties as emerging from Exs. W-2, W-3 and W-4.      The Tribunal negatived the contention of the union that the employer was estopped from challenging the status of the workmen also  on the  ground that  there can  be no estoppel against the  statute We  must confess  that even Mr. Pai did not appear to be very enthusiastic to support the finding of the Tribunal  that even  if there  is  a  binding  agreement between the parties and therefore the employe is estopped 330 from questioning the status of salesmen as being workmen, it cannot be  availed of  by the  union because there can be no estoppel against  a statute.  We find  it very difficult not only to  understand but  to appreciate  the approach and the finding  of  the  Tribunal  in  this  behalf.  There  is  no statutory provision  that a  status of a person invoking the jurisdiction  of  the  Tribunal  must  be  adjudicated  upon notwithstanding that no contention to that effect is raised. No statutory provision was brought to our notice which would be rendered nugatory or ineffective if the Status of workman is not  questioned. Nor it can be said that the employer has contracted out  of the  benefits of  a  statute.  Whether  a particular person  is a  workman or not depends upon factual matrix. Workman  is defined  in Sec.  2(S) of  the Act.  The ingredients  and   the  incidents  of  the  definition  when satisfied.  the  person  satisfying  the  same  would  be  a workman. Negatively,  if someone  fails to  satisfy  one  or other ingredient or incident of the definition he may not be held to  be workman  within the meaning of the expression in the Act.  There is no provision in the Act which obliges the Industrial Tribunal  or other forums set up under the Act to decide  even  in  the  absence  of  a  contention  from  the employer, a  preliminary issue  whether the  person who  has invoked its  jurisdiction is  a workman  or not. There is no such obligation  cast statutorily  on the  Tribunal. If  the employer does  not arise   contain  about the  status of the workman  approaching   the  Tribunal  the  Tribunal  has  no obligation to  decide the status of the person whether he is a workman  or not.  Conversely if the employer agrees not to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 20  

question the  status in future it would only imply that such a contention  would not  only be not raised but if raised it would not  be pressed  and if pressed should be negatived in view of the binding agreement. The resultant situation would be that  the Tribunal must proceed on the assumption that no such contention  is raised  and required  to be  adjudicated upon. If  the contention is not raised the Tribunal is under no obligation  suo motu  or on  its own  to raise and decide such a  contention to  cloth  itself  with  jurisdiction  to adjudicate  upon  the  dispute.  The  Tribunal  derives  its jurisdiction by  the order  of  reference  and  not  on  the determination of  a jurisdictional  fact which  it  must  of necessity  decide  to  acquire  jurisdiction.  Therefor  the Tribunal was clearly in error in holding that the contention convassed on  behalf of  the union  would permit it to raise estoppel against  a statute.  Undoubtedly it  is  true  that there can  be no  estoppel against the law of the land. If a party is estopped by doing a thing which it is under a legal disability to perform or forbearing to do something which it is his  duty to do the result would be an enlargement of the contractual  or   other  rights  allowed  by  law  or  their alteration. The 331 Court  enforces   the  performance  of  statutory  duty  and declines to  interfere     for the assistance of persons who seek its  aid to  relieve them against the express statutory provision. Approving  the dicta  in Maddison  v. Alderson(1) this  Court  observed  in  K.Ramadas  Shenoy  v.  The  Chief Officers, Town Municipal Council, Udipi and Ors.,(2) that an excess  of   statutory  power  could  not  be  validated  by acquiescence in or by the operation of estoppel. Is that the situation here?  The Tribunal  observed that notwithstanding the fact that the employer has agreed to recognise the union as representative of the Field Force including the salesmen, agreement between  the parties cannot override   the statute and if  therefore Shri  A.K. Basu  is not  workman under the Act, the agreement between the Union and the employer cannot confer on  the Tribunal      any  jurisdiction to  give  any relief  to  him  under  the  Act.  The  Tribunal  completely misdirected itself  when it  assumed and arrogated to itself the       obligatory duty in the absence of an impermissible contention, to  raise one  and proceeded to adjudicate upon, notwithstanding the fact if the agreement   is subsisting no such contention  can be  raised and  if  raised  has  to  be ignored as  an irrelevant  pleading. In  this connection, it may be  recalled that  when a reference is made under Sec.10 of the  Act, Rule  10-B of the Industrial Disputes (Central) Rules, 1957 obliges the workman involved in the reference to file with  the Tribunal a statement of demands relating only to the  issues as are included in the order of reference and simultaneously serve  a copy  of the  same to  the employer. Sub-rule(2) enjoins  the employer  within two  weeks of  the receipt of  the statement of claim to file its rejoinder and simultaneously serve  a copy  of the  same on  the  workman. Ordinarily, the  Tribunal after  ascertaining on  what issue the parties are at variance raises issues to focus attention on points  in dispute.  In industrial  adjudication , issues are of  two types:  (i) those referred by the Government for adjudication and set out in the order for reference and (ii) incidental issues  which are  sometimes the issues of law or issues of mixed law and fact. The Tribunal may as well frame preliminary issues  if the point on which the parties are at variance, as reflected in the preliminary issue, would go to the root  of the  matter. But  the  Tribunal  cannot  travel beyond the  pleadings and  arrogate to  itself the  power to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 20  

raise  issues   which  the  parties  to  the  reference  are precluded or prohibited from raising; to wit if the employer does not  question the  status of  the workmen, the Tribunal cannot suo  motu raise  the issue  and proceed to adjudicate upon the same and throw out 332 the reference  on the sole ground that the concerned workman was not  a workman  within the  meaning of the expression of the  Act.  And  it  is  not  obligatory  upon  the  employer necessarily to  raise  the  contention  that  the  concerned workman  was  not  a  workman  within  the  meaning  of  the expression under the Act. Therefore, the Tribunal was wholly in error in holding that if the contention of the union were to prevail,  the well  laid rule  of no  estoppel against  a statute would be violated.      Having examined all the dimensions of the matter, it is crystal clear  and  is  indisputably  established  that  the agreement relied  upon by  the union  is a  valid subsisting agreement. It  is in  force. It  is neither  repudiated  nor terminated. It  is binding  upon both  the parties. Once the agreement is  held to  be binding,  the employer is estopped from contending that the workmen involved in the dispute who were salesmen  were not  workmen within  the meaning  of the expression under  the Act.  Therefore, the  Tribunal was  in error in  undertaking to  examine that contention and answer it.  That  part  of  the  order/award  of  the  Tribunal  is unsustainable and must be quashed and set aside.      We accordingly,  direct  the  Tribunal  to  proceed  to determine the  dispute on  merits without  concerning itself with the consideration of the question whether the concerned workmen were  workmen within  the meaning  of the expression under the  Act. This  appeal accordingly  succeeds  and  the award of  the Tribunal  to the  extent indicated  herein  is quashed and  set aside  and the  matter is  remitted to  the Industrial Tribunal  with a  direction to proceed further in the light  of the  observations made  in this  judgment. The respondent shall  pay to  the appellant  costs quantified at Rs. 3,000. N.V.K.                                       Appeal allowed. 333