THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM) WA No.156 of 2016

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1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM) WA No.156 of 2016 Appellants: 1. Sri Shankar Narayan Ghosh, S/o Sri Anil Kumar Ghosh Village & PO Ganki (Khowai) PS Khowai Tripura (West), PIN Sri Gopal Acharjee S/o Late Bhubaneswar Acharjee R/o Krishna Nagar, Banerjee Para, PO Agartala,PS West Agartala, Tripura West, PIN Md. Kanu Mia Ref Case No.4/13 S/o Late Akhmat Ali Village Durganagar, PO K.K. Nagar, PS Bishalgarh, Tripura (West) PIN Sri Aghore Debbarma Ref Case No.5/13 S/o Late Bharat Chandra Debbarma Village & PO Rangmahal, PS Bishalgarh Tripura (West) PIN Sri Narayan Chandra Lodh Ref. Case No.6/13 S/o Late Rakhal Chandra Lodh Village & PO South Nehal Chandra Nagar PS Bishalgarh, Tripura (West) PIN Sri Swapan Karmakar Ref Case No.7/13 S/o Late Satish Chandra Karmakar Village & PO South Nehal Chandra Nagar PS Bishalgarh, Tripura (West) PIN Md. Abdul Shobhan Ref Case No.8/13 S/o Md. Idrish Mir Village Motinagar, PO Sonamura, PS Matinagar, Tripura (West) PIN Sri Chamal Chakraborty Page 1 of 15

2 Ref Case No.9/13 S/o Late Paresh Chandra Chakraborty Village Pratapgarh (West) PO & PS Agartala Tripura (West) PIN Sri Subodh Bebbarma Ref Case No.11/13 S/o Karti Kumar Debbarma Village-Chetikhol PO Gajaria PS Bishalgarh, Tripura (West) PIN Sri Suken Debbarma Ref Case No.12/13 S/o Late Basanta Debbarma Village Chelischala PO Garasia PS Bishalgarh, Tripura (West) PIN Sri Dibakar Chaudhury Ref Case No.14/13 S/o late Madan Mohan Chaudhury Village & PO A.D. Nagar Khaerpur, PS Amtali, Tripura (West) PIN Sri Bhabotosh Acharjee Ref Case No.15/13 S/o late Jatindra Acharjee Village & PO Nehal Chandra Nagar PS Bishalpur, Tripura (West) PIN Sri Pradeep Saha Ref Case No.16/13 S/o Sri Prafulla Saha Village & PO Durjoynagar PS Agartala, Tripura (West) PIN Sri Prabir Pal S/o Late Amrit Lal Pal R/o Ramnagar, Road No.3 PO & PS Ramnagar, Tripura (West) PIN Sri Jitendra Sarkar S/o Late Krishnadhan Sarkar R/o Madhabpur, PO Ishan Chandra Nagar PS Amtali, Tripura (West) PIN Page 2 of 15

3 16. Sri Shankar Chandra Das S/o Late Suresh Chandra Das Village & PO Nehal Chandra Nagar PS Bishalgarh District Tripura (West) PIN Sri Jiban Chandra Das S/o Monmohan Das Ghaniamara PO Nehal Chandra Nagar District Sepahijala, Tripura West, PIN Sri Dasarath Deb Barma S/o Late Malindra Deb Barma R/o Chelikhola PO Gazria PS Bishalgarh District Tripura West 19. Sri Biplab Bhattacharjee S/o late Chittaranjan Bhattacharjee Ram Nagar, Road No.9, PO Ram Nagar Tripura West, PIN Sri Ratan Chandra Das S/o Late Manmohan Das Village & PO Bishalgarh, Gokul Nagar PS Bishalgarh, Tripura West, PIN Sri Rabindra Saha S/o Late Mohan Saha Village & PO East Aralia, PS East Agartala, Tripura West, PIN Smt. Bibha Rani Ghosh W/o Late Babul Ghosh Village Ghania mara, Nehal Ch. Nagar Bishalgarh, Tripura West 23. Sri Sanjit Saha S/o Late L.M. Saha Village & PO West Laxmibil, PS Bishalgarh, Tripura West, PIN Sri Braja Kr. Deb Barma S/o Sri Kartik Beb Barma Village & PO Chandra Nagar PS Bishalgarh, Tripura West, PIN Sri Sankar Kumar Shil S/o Late G.C. Shil Village & PO Jaya Nagar, PS Kotwali (W), Tripura West, PIN Page 3 of 15

4 26. Sri Narayan Ch. Das S/o Late SC Das Village & PO Nahal Chandra Nagar PS Bishalgarh, Tripura West PIN Smt. Usha Rani Chowdhury W/o Late Birulal Chowdhury Village Rangutia, PO Bamutia PS Lefunga, West Tripura 28. Smt. Anjana Paul Alias Rudra Paul W/o Late Krishna Rudra Paul Village -Woman s College Chowmahani (Ajachak Ashram) Agartala 29. Smt. Anjali Chowdhury W/o Late Nependra Chowdhury Champamura PO Champamura District Sepahijala, Tripura West 30. Smt. Kalpana Shil W/o Late Parimal Shil Village & PO Purathal Rajnagar PS Bishalgarh, Tripura (W) Respondents: 1. Oil & Natural Gas Corporation Ltd MBA Basin, 50 Jawaharlal Nehru Road, Kolkata The Basin Manager Oil & Natural Gas Corporation Ltd. 50, Jawaharlal Nehru Road Kolkata Head Geophysical Services, ONGC Ltd. 50, Jawaharlal Nehru Road, Kolkata The Deputy General Manager & In charge HR-ER, Oil & Natural Gas Corporation Ltd. MBA Basin, 50 Jawaharlal Nehru Road, Kolkata The Secretary, The Central Govt. Industrial Tribunal cum Labour Court, Ministry of Labour and Employment (Government of India), R.K. Mission Road, Kendriya Shram Sadan, 2 nd Floor, Birubari, Guwahati Page 4 of 15

5 Proforma Respondent: 6. The Union of India Represented by the Secretary, Ministry of Labour and Employment, Government of India, Shram, Shakti Bhawan Rafi Marg, New Delhi BEFORE HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE MANOJIT BHUYAN For the appellants : Dr. AK Saraf, learned senior counsel assisted by Mr. A Goyal and Mr. P Baruah, learned counsel For the Respondents : Mr. AK Poddar, Ms. S Senapati and Mr.A Poddar, learned counsel Date of hearing : Date of Judgment : JUDGMENT AND ORDER(CAV) (Ajit Singh, C.J.) This intra court appeal is directed against the order dated passed by the learned Single Judge whereby he has allowed WP(C) Nos. 5958,7372,7381 and 7385, all of These writ petitions were filed by the Oil & Natural Gas Corporation Limited (ONGC) Respondent No.1 challenging the references of identical industrial dispute bearing Nos.3 to 15; 23 to 38 and 42 to 57 of The references were made pursuant to industrial dispute raised by the respective appellants. Challenge was also made by Respondent No.1 to the consequential notices issued by the Central Government Industrial Tribunal-cum-Labour Court, Guwahati (in short Tribunal ). By the impugned judgment, all the references and also the consequential notices have been quashed on the ground that, in fact, no industrial dispute existed which required adjudication. 2. The appellants were recruited by Respondent No.1 as Contingent Workers sometime in the year 1980 on daily basis. They were made to work different kinds of unskilled jobs, for which wages were paid to them. Page 5 of 15

6 The appellants and other similarly situated workers claimed regularization and absorption of their services to which Respondent No.1 did not agree. This became a cause for an industrial dispute between the management of Respondent No.1 and its workers. Ultimately, after lot of deliberations, on 27/ , the dispute was settled in the presence of Conciliation Officer as provided under Section 12 of the Industrial Disputes Act, 1947 ( in short Act ). The management of Respondent No.1 and two Unions of workers, namely, ONGC Din Mazdoor Union (CITU) and Tripura ONGC Shramik Union (INTUC) had effectively participated in the conciliation proceedings before the Conciliation Officer. The terms of settlement were reduced in writing and thereafter acted upon by the parties. The terms of settlement read as under:- Terms of Settlement 1. Management agreed that re-engagement process of contingent workers (180 days category) shall be started with effect from for the field season only. 2. It is agreed that one time lump sum terminal benefit payment of Rs (Rupees Three Thousand five hundred only) per head per field season against their continuous past service shall be paid to all the workers whose services shall stand disengaged after the completing of field season. 3. Terminal benefit shall be calculated as under i) Persons completing 120 days and more in the field season shall get full amount Rs ii) Persons completed more than 45 days and less than 120 days shall be paid on pro rata basis assuming 180 days as field season. iii) No payment shall be made to the contingent worker who has worked less than 45 days. 4. The amount shall be full and final settlement inclusive of all statutory liability and payment shall be made by except CPF final claim. Union demanded, if in the other areas/region settlement reached with terminal benefit of Rs excluding stator benefit, in such event the said statutory benefit shall be given to GP-27 field party workers Management agreed to. 5. Management agreed to clear all kills & liveries items in the present field season which are due. Page 6 of 15

7 6. Payment of ex-gratia for present season i.e field season shall be paid on proportionate basis as per their attendance during field season. 7. Both the parties agreed to withdraw court cases if any pending before any court of law. Implementation All the parties agreed to implement the agreement with proper spirit and cooperate in maintaining industrial peace and harmonious relation and also withdraw all agitation if any. Implementation report of the settlement shall be sent to RLC(C) Guwahati ALC(C), Silchar within 30 days after completion of field season i.e by the parties concerned jointly or separately, failing which it will be presumed that settlement has been implemented. Management pleased on record his thanks to all the Union representative who were present in the discussion and helped in reaching amicable settlement. 3. And much prior to the aforesaid settlement, four writ petitions including CR Nos.240 and 7 of 1993 were filed before the then Agartala Bench of Gauhati High Court, by similarly situated workers praying for the same relief i.e. regularisation of their services and for payment of emoluments equivalent to the amount paid to regularly appointed employees. All the four writ petitions were allowed by a common judgment dated with a direction to Respondent No.1 to absorb the services of such daily wage workers subject to their eligibility and availability of sanctioned posts and till their regularisation, they be allowed to continue for the maximum days in a year having regard to the necessity and requirement of the work. Certain more directions were given to the effect that no recruitment shall be undertaken to any sanctioned vacancy till the workers were regularised. The Judgment dated was passed by a learned Single Judge of the Agartala Bench. 4. But due to some reason or the other, since the memorandum of settlement dated 27/ was not brought to the notice of the learned Single Judge during the course of hearing of writ petitions which led to passing of judgment dated , Respondent No.1 filed Review Petition Nos.13 and 17 of 2001 against that judgment. The learned Single Page 7 of 15

8 Judge took note of the memorandum of settlement and allowed the Review Petitions vide order dated The order dated was never challenged before any superior court or higher forum and as such it became final. The relevant extract of the order reads as under:- 14. In the present case, the two recognised Unions, one affiliated by CITU and another by INTUC participated in the conciliation proceedings in presence of the Regional Labour Commissioner (Central), Guwahati and the conciliation meeting held at Agartala, deliberation had been there for two days, that is on 27 th and 28 th January,2001 and thereafter arrived at the terms of settlement and the same had been reduced to writing. On perusal of the terms of settlement it appears that neither of the terms is opposed to any statutory provision and/or any public policy of the Government, rather these are in conformity with and consistent with the fair labour practice and as such the petitioners, respondents herein once received the amount ceased of their right to agitate the same once again. 15. The fact of Memorandum of Settlement arrived at in the conciliation proceedings had not been brought to the notice of the court while deciding the writ petitions either by the writ petitioners or by the Management. Mr. Deb, learned senior counsel for the Management review petitioners submits that the writ petitions had been filed long before the Memorandum of Settlement arrived at and the counter affidavit were also filed earlier and during the pendency of the writ petitions, the conciliation meeting was held and after deliberation agreement was finalised followed by Memorandum of Settlement signed by the respective parties and in compliance, the Management paid the dues pursuant to the settlement, but since those papers had been at the office of the Management at Kolkata the said fact could not be brought on record either by filing supplementary affidavit or during the course of argument. The writ petitioners cited above also received the payment on different dates in the month of July, The Memorandum of Settlement was finalised and executed on and during the argument that should have been brought to the notice of the court by the writ petitioners as well as by the Management, but that was not done, had the aforesaid fact have been brought to the notice of the court before passing the judgment, the fate of the cases would have been otherwise. Page 8 of 15

9 17. Under the aforesaid circumstances and having regard to the legal implication of the Memorandum of Settlement entered into in a conciliation meeting and having applied the ratio of the decisions of the Hon ble Apex court quoted above, I am of the considered opinion that the writ petitioners of Civil Rule No.240/93 and 7/93 ceased of their right to agitate their grievances once again after the same stood finalised by the Memorandum of Settlement. Those who received the payment, they should have informed the court earlier, but that was also not done. 18. In that view of the matter, I am constrained to review the judgment delivered on so far it relates to Civil Rule Nos.240/93 and 7/93. After having entered into a Memorandum of Settlement in a conciliation proceeding by the writ petitioners through their recognised Association and also the writ petitioners who even did not participate in the conciliation proceeding are bound by the said Memorandum of Settlement and as such the reliefs granted vide para 18 of the judgment dated in Civil Rule Nos.240/93 and 7/93 stand deleted/vacated. 19. Both the review petitions are allowed accordingly. (emphasis supplied) 5. Later, another writ petition being numbered as CR No.88/1993 filed by similarly situated workers raising the same issue was also disposed of by the learned Single Judge of Agartala Bench vide judgment and order dated in terms of the above quoted order dated passed in Review Petition Nos.13 and 17 of The judgment dated was then challenged in WA No.85/2002, but the Division Bench upheld the order passed by the learned Single Judge and disposed of the writ appeal vide judgment and order dated The relevant extract of the judgment and order reads as under:- 5. Having found, on hearing the learned counsel for the parties that the factum of settlement had not been denied by the petitioners in the said Civil Rules and having concluded that the said settlements were binding on all the workmen, the learned Single Judge allowed the review petition and vacated directions given by the judgment and order, dated , aforesaid. 6. When the present appellants writ petition, namely Civil Rule 88 of 1993 was taken up, the learned Single Judge pointed Page 9 of 15

10 out that in the light of the decision of the said review application and in order to maintain consistency in the decision of the Court, the writ petition cannot be maintained inasmuch as the writ petitioners were also covered by the said judgment. Because of the conclusion so reached, the learned Single Judge disposed of the writ petition with direction to the respondent Corporation to act in terms of the tripartite settlement and release/grant all benefits to the petitioners to which they are entitled to. Aggrieved by the disposal of their writ petitions, the appellants are, now, before this court with the present appeal. 7. In view of the fact that tripartite settlement had been reached between the management of the respondent- Corporation and the recognized unions representing the workmen of the respondent Corporation, it becomes clear that all the workmen of the respondent Corporation are bound by the terms of the settlement, as contended by the respondent-corporation. In fact, in a writ proceeding, we cannot determine if the terms of settlement, as projected by the respondent-corporation, are correct or not, for, determination of any such question would require taking of evidence or holding of roving enquiry, which is not possible in a writ proceeding. 8. Without expressing, therefore, any opinion as regard the veracity, correctness, genuineness, truthfulness or legality of the settlement, which the respondent-corporation claimed to have reached with its workmen, we are of the view that in the face of the fact that the settlement, which according to the respondent-corporation, to have been reached between the workmen, on the one hand, and the management of the Respondent-Corporation, on the other hand, the learned Single Judge was fully justified in not passing any order on merit in the writ petition. 9. Because of what has been discussed and pointed out above, we see no reason to interfere with the impugned order disposing of the writ petition filed by the present appellants. 10. Before we part with these appeals, we wish to make it clear that whatever observations we have made as regards the settlement aforementioned are merely for the purpose of disposal of these appeals and shall not be construed as our comments or observations on the truth, veracity, correctness or legality of the terms of settlement, which had been reached between the parties. We also make it clear that the appellants shall remain at liberty to take recourse to such provisions of law as they may be entitled to and the Page 10 of 15

11 disposal of these writ appeals shall not be treated to have created any bar in their taking such action as may be permissible in law. 6. The above quoted judgement and order dated reveals that the appellants in WA No.85/2002 had also questioned the correctness/legality of the terms of settlement, which the Division Bench declined to examine. The Division Bench, however, gave liberty to the appellants to take recourse to such provisions of law as may be available to them. The appellants, therefore, in the light of observation made by the Division Bench, raised the issue regarding regularisation and absorption of their services including the applicability of the Memorandum of Settlement dated 27/ The Government referred the dispute involving the appellants to the Tribunal for adjudication of the same. The references, though made separately, involved an identical industrial dispute. One such reference dated (challenged in WP(C) No.5958/2013) is quoted below:- Whether the action of the management of ONGC Limited, in terminating the service of Shri Phani Bhusan Debbarma, Ex- Contingent workman engaged in seismic survey work through their Geographical Party w.e.f in presence of settlement dated 27/ , is legal and justified? What relief the workman is entitled to? 7. Aggrieved with the references made and the consequential notices issued by the Tribunal, the appellants challenged the same in four writ petitions mentioned above. The main thrust of challenge was that dispute once settled between the parties under Section 12(3) of the Act and had been acted upon with the finality attached to it, cannot be reopened in the form of references. Respondent No.1 also referred to the provisions of Section 18(3) of the Act. The appellants, on the other hand, defended the references by taking plea that they were not party to the settlement and hence, it was not binding on them. 8. The learned Single Judge, after hearing the respective counsel for the parties, agreed with Respondent No.1 and by the common impugned judgment, has quashed all the references of industrial dispute as well as Page 11 of 15

12 the consequential notices issued by the Tribunal on the ground that the dispute had already been settled under Section 12 of the Act and as such, really no industrial dispute existed warranting adjudication. The learned Single Judge, in holding so, relied upon the decisions of the Supreme Court rendered in National Engineering Industries Limited vs. State of Rajasthan, (2000) 1 SCC 371 and Barauni Refinery Pragatisheel Shramik Parishad vs. Indian Oil Corporation Limited (1991)1 SCC 4.The learned Single Judge disagreed with the plea of appellants that merely because they were not party to the settlement, Memorandum of Settlement dated 27/ was not binding on them. Aggrieved, the appellants have filed one common appeal. 9. It is argued on behalf of the appellants that terms of Memorandum of Settlement is wholly arbitrary and unreasonable and therefore deserves to be set aside. It has also been argued that appellants claim for absorption cannot be rejected because of the superior bargaining power of Respondent No.1. In the alternative, the learned counsel for the appellants has argued that the amount mentioned in the Memorandum of Settlement being on the lower side be ordered to be enhanced by this court. The learned counsel for respondent No.1, in reply, defended the impugned judgement and submitted that the settlement having been arrived at in the presence of Conciliation Officer as provided under Section 12 of the Act cannot be allowed to be reopened. Learned counsel, in support of his submission, has also referred to Section 18(3) of the Act. 10. Jurisdiction of the High Court to entertain a writ petition impugning a reference on the ground of non-existence of an actual or apprehended industrial dispute has rightly not been questioned before us. And with regard to the sanctity of settlement arrived at in the course of conciliation proceedings, the Supreme Court, after analyzing the provisions of Sections 2(p), 18(1) and 18(3) of the Act in Barauni Reginery Pragatisheel Shramik Parishad vs. Indian Oil Corporation (supra), has held that it is binding on all parties to the industrial dispute, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case Page 12 of 15

13 may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. Meaning thereby, a settlement arrived at in the course of conciliation proceedings with a recognized union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same and to that extent it departs from the ordinary law of contract. According to the Supreme Court, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. Not only this, the Supreme Court has also held that there is an underlying assumption that a settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made binding not only on the workmen belonging to the union signing the settlement, but also on others and that is why such a settlement is put on par with an award made by an adjudicatory authority. 11. Later, in another case, K.C.P. Ltd. v. Presiding Officer, (1996) 10 SCC 446, the Supreme Court has held that the terms of settlement cannot be considered to be in any way ex facie, unjust or unfair and the settlement consequently must be held to be binding on the workmen who did not accept the settlement. The Supreme Court has also observed that there may be exceptional cases where there may be allegations of mala fide, fraud or even corruption or other inducements, but in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight and consideration. In this case, the Supreme Court further made it clear that the settlement of labour disputes by direct negotiation and collective bargaining is always to be preferred for it is the best guarantee of industrial peace which is the aim of all legislations for settlement of labour disputes. 12. In yet an another case, P Virudhachalam vs. Lotus Mills, (1998) 1 SCC 650, the Supreme Court after examining the scheme of the Act in depth held that its provisions leave no room for doubt that once a written settlement is arrived at during the conciliation proceedings, such settlement Page 13 of 15

14 under Section 12(3) has a binding effect not only on the signatories to the settlement but also on all parties to the industrial dispute which would cover the entire body of workmen, not only existing workmen but also future workmen. According to the Supreme Court, a settlement during conciliation proceedings has the same legal effect as an award of Labour Court, or Tribunal or National Tribunal or an arbitration award and they all stand on a par. 13. All these cases were subsequently followed by the Supreme Court in National Engineering Industries Ltd. vs. State of Rajasthan (supra), wherein it held that a settlement arrived at in the course of conciliation proceedings with a recognized majority union will be binding on all workmen of the establishment and that it is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace. In this case, the Supreme Court also finally observed that if every trade union having a few members is to go on raising a dispute and the State Government making reference again and again, the very purpose of settlement shall be defeated. 14. In the case at hand, as mentioned above, the dispute regarding regularization and absorption of contingent workers was settled in the course of conciliation proceedings after lot of deliberations on 27/ The management of Respondent No.1 and two recognized Trade Unions, namely, ONGC Din Mazdoor Union (CITU) and Tripura ONGC Shramik Union (INTUC) had participated in the conciliation proceedings. The terms of settlement were reduced in writing and thereafter also acted upon by the parties. The settlement is based on the principle of collective bargaining for resolving industrial disputes and is at par with the award of Labour Court, or Tribunal, or National Tribunal or an arbitration award. Therefore, the dispute of regularization/absorption once settled and having been acted upon cannot be allowed to be raised or reopened by the appellants. The State Government also cannot be permitted to make a reference in respect to a dispute which has already been settled in the presence of Conciliation Officer as provided under Section 12 of the Act. Page 14 of 15

15 Even otherwise it is not the contention of the appellants that the settlement was arrived at on account of fraud, corruption or other inducements or is in any way mala fide. This being the situation, we are unable to agree with the appellants that settlement is either arbitrary or unreasonable or that their claim for absorption was rejected because of superior bargaining power of Respondent No Also, as mentioned above, a learned Single Judge in Review Petition Nos.13 and 17 of 2001 vide order dated has already held that the terms of settlement are in conformity and consistent with the fair labour practice and not opposed to any statutory provision or public policy of the Government. This order was never challenged before any higher forum and as such it attained finality. It is true that a Division Bench of this Court vide judgment and order dated arising out of one another order passed by the learned Single Judge while rejecting the claim of appellants therein for regularization and absorption observed that they will be at liberty to question the legality of the terms of settlement. But such observation was made casually without referring to the decisions of the Supreme Court on the point. The appellants, therefore, cannot be given any benefit of the liberty given, more particularly, when the terms of settlement are not challenged on the grounds of mala fide, fraud, corruption or other inducements etc. Lastly, as the terms of settlement have become final we are not inclined to increase/enhance the amount mentioned in the Memorandum of Settlement either. 16. For these reasons, we find no merit in this appeal. The appeal is accordingly dismissed, but without any order as to costs. JUDGE CHIEF JUSTICE skd Page 15 of 15