SARVA SHRAMIK SANGH Vs. V V F LIMITED

JUDGEMENT

(1.) BOTH these writ petitions filed under Articles 226 and 227 of the Constitution of India are essentially directed against the Award passed by the Industrial Tribunal, Mumbai dated August 29, 1996 in Reference (IT) No. 103 of 1988. Writ Petition No. 1336 of 1997 has been filed by the Sarva Shramik Sangh Union of the workmen employed under the respondent-company the Vegetable Vitamin Foods Company (Private) Limited, whereas Writ Petition No. 481 of 1998 has been filed by the respondent company challenging the correctness of the aforesaid Award as well as the order dated February 13, 1998 passed by the Industrial Court, on the application filed by the company being Misc. Application No. 397 of 1988 under Reference (IT) No. 103 of 1988, which was for review, purported to have been filed under Rule 31 for correction of certain clerical error in the Award. In the circumstances, I am disposing of both the writ petitions together as they involve common questions arising out of the same reference proceedings. For the sake of convenience the parties would be described as company and union, respectively.

(2.) BRIEFLY stated, the company is engaged in the manufacture of fatty acids, glycerine, steric acids, acid oil, etc. in its factories in Bombay. The company employed about 400 workmen. The workmen employed by the company are represented by two unions, namely, Sarva Shramik Sangh and V. V. F. Employees union. In this matter we are concerned with the demands made on behalf of the workmen represented by Sarva Shramik Sangh, which has been referred to as union. According to the company, the other union known as V. V. F. Employees union represented majority workmen at the relevant time. Both the unions had submitted Charter of Demands. In so far as Sarva Shramik Sangh is concerned, they had served Charter of Demands on November 2, 1987. The said union also addressed a letter dated January 25, 1988 to the Deputy Commissioner of Labour, Conciliation in relation to the Charter of Demands. It is not in dispute that the company after deliberations with the other union, namely, V. V. F. Union signed settlement on April 22, 1988. The settlement arrived at between the company and the said V. V. F. Union was sent to the appropriate authority, vide letter dated May 10, 1988. On the other hand, the present union, namely, Sarva Shramik Sangh did not accept the settlement but persisted with their Charter of Demands. In the circumstances, the Conciliation Officer reported failure of conciliation; consequent to which the Government of Maharashtra, the appropriate Government, made reference with regard to the Charter of Demands of the S. S. S. Union on November 4, 1988. Reference was made to the Industrial Court, Mumbai, enlisting in all 19 demands. It is relevant to note that while the said reference was pending the other union namely, V. V. F. Union entered into another settlement with the company on June 1, 1991. This settlement is stated to be a final settlement with regard to their pending demands. These are the two relevant settlements in the backdrop of which the proceedings before the Industrial Court will have to be adjudicated. However, to complete the narration of events, it would be relevant to point out that thereafter other two settlements have been arrived at between the company and the said V. V. F. Employees Union in the year 1995 and another on January 7, 1997. It is also relevant to note that out of total 400 workmen about 263 workmen have accepted the settlement arrived at between the company and the V. V. F. Union. This fact has been noted even by the Industrial Court. It is thus stated that majority of the workmen are signatories to the settlement so arrived with the company and that they have availed of the benefits and facilities in terms of the above said settlements of 1988 and 1991. It also appears from the record, as noted by the Industrial Court, that even some of the workmen who are represented by Sarva Shramik Sangh in the present reference, have taken advantage of the aforesaid settlements pursuant to the interim award. It is relevant to note that, the company is having two units, one at Sion and another at Sewree. It is not in dispute that, besides the present reference, in the past two other references were made and award in Reference (IT) 242 of 181 has been passed in respect of unit at Sion, whereas Award in Reference (IT) No. 184 of 1983 has been passed for Sewree Unit. In the backdrop of the said proceedings and having regard to the Charter of Demands raised by both the unions, the company negotiated with the union which represented the majority of the workmen and succeeded in striking a settlement dated April 23, 1988 and full and final settlement of the then pending demands on 1st June, 1991. The company, therefore, contested the present reference. It is not in dispute that both the unions are unrecognised unions and, therefore, the Industrial Court had no option but to examine the rival claims. On the other hand, if the V. V. F. employees union was a recognised union then the settlements arrived at by the company with the said union, outside the conciliation proceedings would have bound all the employees irrespective of the fact whether they were represented by the said union or not. The company resisted the demands mainly on the ground that majority of workmen have already entered into settlement in writing with the company and the said settlement has been duly intimated to the appropriate authority coupled with the fact that majority of the workmen have taken benefits of the said settlement. The company, therefore, contended that the settlement so arrived at with other union, namely V. V. F. Employees Union, which represented majority of workmen, should be presumed to be just and reasonable and the same be made applicable even to the workmen represented by the minority union by passing award in terms of the said settlement. On the other hand, Sarva Shramik Sangh union took the stand that the settlement arrived at between the company and the other union was not binding on the workmen represented by them. According to them, the settlement was arrived at with a committee of the workers and not with any union. It was further contended that under the said settlement, workmen were discriminated in asmuch as categories A, B and C were carved out and workers were distributed in three categories without any attempt to ascertain their length of service, etc. The thrust of the grievance was that settlement with other union was brought about only to defeat the claim of the members of Sarva Shramik Sangh since they were prosecuting for higher demands. Accordingly, the justness and reasonableness of the two settlements was assailed before the Industrial Court. The Industrial Court on the basis of the rival stand formulated in all five issues. While answering the first issue, the Industrial Court has concluded that the settlement arrived at with majority of workmen is fair and proper. The Industrial Court also independently examined the respective demands which were referred for its adjudication. The Industrial Court has passed Award not only in terms of settlements of 1988 and 1991 but also in terms of settlement of 1995. The company is dissatisfied with the later part of the Award founded on settlement of 1995. According to the company, that was not the subject matter for adjudication before the Industrial Court, whereas independent reference is pending being reference (IT) No. 13 of 1996 in that behalf. The union on the other hand, challenges the approach of the Industrial Court in passing Award in terms of the settlement and for not accepting the demands as put forth by them. The union has also made a grievance that the Industrial Court in any case has committed serious error in passing Award in terms of said settlement over looking Clause (9) of the settlement which provides that benefits under the settlement shall be extended to only such workmen who are prepared to accept the said settlement by giving individual undertakings for their agreement and to receive benefits thereof. Accordingly, both the Counsel addressed the Court on various aspects. On the basis of the said submissions the issues that would broadly arise for my consideration would be as follows:

(3.) THE foremost point which came up for consideration during the course of arguments is: whether Sarva Shramik Sangh has any locus to maintain this writ petition? In this context the Counsel for the union submits that, although the reference was between the company and the workmen employed under it, but it is the Sarva Shramik Sangh, who had espoused the cause of the said workmen and for that reason had locus to maintain the writ petition in this Court. He submits that, the Court should take into account the substance of the proceedings and not go by the form or the description of the parties before the Industrial Court and in the writ petition. To support his submission he has placed reliance on section 36 of the Industrial Disputes Act, which postulates that the workman who is a party to the dispute shall be entitled to be represented in any proceeding under this Act, which includes by any member of the executive or other office bearer of a registered trade union of which he is a member. According to him, the provision to sub-section (1) inserted by Amendment Act of 1976 would fortify his argument. He submits that, the said proviso postulates that where there is a recognised union for any undertaking under any law for the time being in force, no workmen in such undertaking shall be entitled to be represented as aforesaid in any proceedings except by such recognised union. He, therefore, submits that, in the present case since there was no recognised union, the workmen could be represented by Sarva Shramik Sangh which was unquestionable a registered trade union. In support of this submission, he has placed reliance on the decision of the Apex Court reported in (Mumbai Kamgar Sabha v. Abdulbhai), A. I. R. 1976 S. C. 1455. Reliance has been placed on paras 7 to 9 of the said decision which reads thus :