Bengal Provincial Banks’ Contract Employees’ Association And Another vs Union Of India And Others

Two writ petitions have been taken up for hearing together. The first being W. P. 29704 (W) of 2017 is where Bengal Provincial Banks’ Contract

Employees’ Association & Anr. are petitioners and the second being W.P.9606 (W) of 2018, by Axis Bank Limited. Four parties are involved in

the controversy. First is Union representing concerned workmen, second is contract employer (contractor), third is principal employer being Axis Bank

and fourth is Conciliation Officer being concerned statutory authority.

Mr. Majumder, learned advocate appears on behalf of the Union and refers to page 50 of his clients’ writ petition, which is record of minutes by

the Conciliation Officer on 12th June, 2017. The minutes say that contract agency representative proposed to pay Rs.2,50,000/- and provide

employment for nine workers on vacancies available after three months. Accepting compensation as full and final settlement is also recorded. The

offer was made as recorded and signed by representative of contractor after which, representatives of the Union not having had arrived, he left. It is

then that representatives of the workers arrived for conciliation. Conciliation Officer was there throughout. Mr. Majumder submits, representatives of

workers accepted the offer made by representative of contractor and conveyed such acceptance to Conciliation Officer. Mr. Majumder then refers to

letter dated 25th July, 2017 issued by Conciliation Officer to contractor. The text of the letter is reproduced below:

 “As per discussion had with you and your local representative regarding non-payment of salary to the security guards who are working at Axis

Bank ATM under M/S. Orion Security Solutions (P) Ltd. from October, 2015 and you have agreed that you will pay Rs. 2.5 lacks to the concerned

security guards each. But I am sorry to inform you that no response has yet been received from your end. You are once again requested to instruct

your local management to pay the salary to the concerned security guards immediately without further delay.â€​

Mr. Majumder refers to paragraph 17 in the writ petition of principal employer for corroboration of his submissions to be facts. Mr. Ghosh, learned

advocate appears on behalf of contractor and submits, his client was compelled to propose as such by Conciliation Officer on that day. There was no

settlement arrived at. It is a clear case of his client’s representative buckling under pressure to have put his signature on a proposal dictated by

Conciliation Officer. Representatives of workers were not there at that time. So, it cannot be said conciliation proceeding took place. It is no

settlement at all. In any event signature of workers in acceptance does not appear from the minutes. The alleged settlement is far removed from a

memorandum of settlement prescribed by Rule 58 of Industrial Disputes (Central) Rules, 1957 as neither being in form nor content. He relies on

judgment of Supreme Court in the case of Workmen, DCGM (Delhi Cloth and General Mills) versus DCGM Limited reported in (1969) 3 SCC 302 as

well as AIR 1970 SC 1851. He relies on the following passage appearing in paragraph 15 of AIR.

“ ……. The question of valid and binding settlement in such circumstances is, in our opinion governed by the statute and the rules made

thereunder. Reliance was next placed on S.18 (1) to support the binding character of the settlement. This sub-section for its proper construction must

be read with the other subsections and the relevant rules, in the light of the definition of ‘settlement’ as contained in S. 2 (p) of the Industrial

Disputes Act. ‘Settlement’ as defined therein means settlement arrived at in the course of conciliation proceeding and includes a written

agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been

signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate Government and the

Conciliation Officer. In the light of these provisions we do not think that section 18(1) vests in the Management and the Union unfettered freedom to

settle the dispute as they please and clothes it with a binding effect on all workmen or even on all member workmen of the Union. The settlement has

to be in compliance with the statutory provisions.â€​ He also relies on paragraph 20 of the said report.

“20. In the result this appeal must be allowed and the impugned order set aside. As the respondents have conceded that there is no compliance

with rule 58(4) the settlement in regard to the dispute referred to the Tribunal, must, therefore, be held to be illegal…..â€​.

He then relies on section 15 of Contract Labour (Regulation and Abolition) Act, 1970 in the context of writ petition of principal employer. In

supporting the challenge of petitioner therein Mr. Ghosh submits, appeal provision is only as arising from sections 7, 8, 12 and 14 of the Act. Those

sections deal with registration and licence and, inter alia, respective revocation. The Act does not provide for statutory remedy for an award holder,

whether by way of settlement or otherwise, to seek execution from writ Court.

For this submission he relies on judgement of a learned Single Judge of this Court in K.M. Mukherjee â€" Vs â€" Secretary and Treasurer, S.B.I.

reported in AIR 1968 Calcutta 59. He places the judgement to show the learned Judge was of the view that there is nothing in Industrial Disputes Act

to bar a suit under general law to obtain proper relief in the context of breach of an award and as such there exists adequate alternative remedy.

Article 226 of the Constitution is not a proper remedy for enforcement of terms of an award. Lastly, in the context of his clients’ stand that there

was no settlement, he relies on section 36(A) of Industrial Disputes Act, 1947 to submit, if in the opinion of appropriate government any defect or

doubt arises as to interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National

Tribunal as it thinks fit. He submits, this is what is to be done as the lawful course of action. On query from Court Mr. Ghosh could not produce any

letter of protestation from his client regarding proposal recorded in minutes dated 12th June, 2017 by Conciliation Officer. Mr. Basu, learned advocate

appears on behalf of the bank being principal employer. He submits, his client is challenging, inter alia, show cause notice dated 24th October, 2017,

the relevant text of which is reproduced below : -

“This is to inform you that, in presence of Mr. Ashutosh Jha, Managing Director, Mr. Surajit Ganguly, Local Representative of M/s. Orion Security

Solutions Pvt. Ltd. Kolkata accepted on 12.06.2017 to pay Rs. 2,50,000/- per worker (Total 16 workers) as non-payment of wages in respect of I.D.

No. 7/3/2016 - E.2 raised by the Bengal Provincial Banks’ Contract Employees’ Association. But, so far this wages not paid till date. It is

violation under the provisions of the Acts.â€​

He submits, there was no settlement. His client was not present and it is also his client’s contention that contractor was compelled to record

purported proposal. There is no signature of representative of Union. The purported settlement is far from a settlement as prescribed by the rules.

This going to root of the matter, impugned show cause notice should be set aside. Mr. De, learned advocate appears on behalf of Conciliation Officer

in W.P. 29704 (W) of 2017. He submits, there was no settlement in terms of Rule 58 which is why it was not reported by his client. Both the parties

did not sit together and settle the dispute or sign a settlement in prescribed manner under the rule. Mr. Gaurisaria, learned advocate appears on behalf

of same Conciliation Officer also made respondent in W.P. 9606(W) of 2018. Neither learned advocates representing the authority could disclose any

material contrary to what was shown by Mr. Majumder and Mr. Basu as issued from their client’s office. On query from Court their joint

submission is no action was taken by their client under sub-section (4) of section 12, Industrial Disputes Act, 1947.

In Delhi Cloth General Mills (supra) Supreme Court said that which has been relied upon and extracted above. The context in which such was said

will appear from the following extract in the same paragraph, which precedes the above extract.

“15. The respondent’s learned Advocate in reply obliquely suggested in this connection that the Management and the Union were free to arrive

at a settlement of their dispute and if they agreed to do so then the agreement could not but be held to be binding. We do not think the Management

and the Union can when a dispute is referred to the Conciliation Officer, claim absolute freedom of contract to arrive at a settlement in all respects

binding on all workmen, to which no objection whatsoever can ever be raised by the workmen feeling aggrieved…….â€​

What is of instruction to this Court is view expressed by Supreme Court in paragraph 15 of Delhi Cloth General Mills (supra) regarding freedom of

arriving at settlement between Management and Union as not being absolute but governed by the statute and rules made thereunder. Section 2(p) of

Industrial Disputes Act, 1947 provides for settlement to be as under : -

“2(p) “settlement†means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the

employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties

thereto in such manner as may be prescribed and a copy thereof has been sent to [an officer authorised in this behalf by] the appropriate Government

and the conciliation officer;â€​

Section 12 sub-sections (3) and (4) are also set out below : “(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the

course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government [or an officer authorised in this

behalf by the appropriate Government] together with a memorandum of the settlement signed by the parties to the dispute.

(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate

Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about

a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement

could not be arrived at.â€​

The statute and rules govern and prescribe procedure for settlement to be arrived at. Circumstances of contractor not having protested regarding

record of proposal for settlement, record thereof by Conciliation Officer in the minutes of conciliation proceedings, stand taken by the Union in seeking

remedy from writ Court regarding compelling action being taken under section 29 of Industrial Disputes Act, 1947 and consistent action on the part of

Conciliation Officer in finding a settlement to have taken place by demanding payment and issuing impugned show cause are on the one hand. Certain

irregularities being omission on the part of said officer to report settlement together with Memorandum of Settlement signed by parties on the other

hand. From the acts of Conciliation Officer it is clear that there was a settlement. There was omission on the part of Conciliation Officer to obtain

signature of representatives of the Union in the minutes recorded. Obtaining the signatures would have rendered the record to be a Memorandum of

Settlement in substantial compliance of Rule 58. This Court finds that the officer in conducting conciliation proceedings caused settlement between the

parties as governed and prescribed by the Act and Rules. This Court is fortified to make such finding since in Delhi Cloth and General Mills (supra)

Supreme Court brought in the application of the Act and Rules in curtailment of freedom of management and workers to settle by themselves once a

dispute has been referred. Facts in that case were regarding an otherwise settlement not being notified.

Setting aside of the settlement in that case was also on concession by management. When parties settle by themselves without participation of

Conciliation Officer, strict adherence to prescribed procedure is a must. That requirement is mitigated when parties settle in conciliation proceedings

itself. Omission on the part of Conciliation Officer discharging statutory function must be viewed accordingly. The officer has otherwise acted on the

settlement and accordingly did not proceed under subsection (4) of section 12, Industrial disputes Act, 1947. The settlement happened in conciliation

proceedings. There is not involved any question regarding interpretation of the settlement. The Union by their writ petition is not seeking execution of

the settlement. This Court is satisfied that petitioners in W.P. 29704 (W) of 2017 are entitled to order in terms of prayer (b) to be complied with within

four weeks from the date of communication of this order. The writ petition is disposed of accordingly. In view of the aforesaid, this Court does not

find reason for interference in W.P. 9606 (W) of 2018 and the same is dismissed. Mr. Ghosh prays for stay of operation of this order. The prayer is

considered and rejected.