Hindustan Lever Ltd. vs Presiding Officer Industrial Tribunal No. V. and Others

Rakesh Tiwari, J.—Heard Sri Sudhir Chandra, senior counsel assisted by Ms. Bharti Sapru, counsel for the petitioner and Sri K.P. Agarwal, senior counsel appearing for the respondents and perused the record.

This writ petition is directed against an order dated 8.8.2003 passed by the Presiding Officer, Industrial Tribunal Vth, U. P., Meerut in an application filed by the Management in Adjudication Case No. 42 of 1998 praying for answering the reference that no industrial dispute survived between the parties in view of the registered settlement arrived at between the parties and the dispute has become stale by efflux of time. A settlement dated 31.12.1974 was arrived at between the petitioner and its workmen represented by Lever Karamchari Union. By the agreement dated 31.12.1974 it was agreed that the dearness allowance which was calculated on the basis of Delhi working class cost of living index would not be paid over and above 1,450 points. The parties also agreed that the Voluntary Separation Scheme which was expiring on 31.12.1974 would be extended. Some of the workmen represented by Hindustan Lever Mazdoor Sabha did not agree with the settlement dated 31.12.1974 aforesaid. They filed applications u/s 33C(2) of the Industrial Disputes Act, 1947 before the Labour Court, Meerut claiming dearness allowance at the rate that was applicable prior to 1.1.1975. Respondent No. 2, Hindustan Lever Mazdoor Sabha had not signed the settlement dated 31.12.1974 but it was registered u/s 6B of the U. P. Industrial Disputes Act, However, in 1977 there were negotiations between the petitioner and the respondent No. 2 and a large package of benefits to be given to the workmen was agreed. Respondent No. 2 Hindustan Lever Mazdoor Sabha agreed to ratify the settlement dated 31.12.1974 and also to withdraw its claim made in application u/s 33C(2) of the Industrial Disputes Act, 1947. Thereafter a settlement dated 5.12.1977 was entered into between the petitioner and Hindustan Lever Mazdoor Sabha by which the ceiling imposed on the dearness allowance on the basis of Delhi working class cost of living index upto a maximum of 1,450 points vide settlement dated 31.12.1974 was specifically agreed to and ratified. The relevant portion of the settlement dated 5.12.1977 entered into between the petitioner and the Hindustan Lever Mazdoor Sabha is as under :

"And whereas the scheme of dearness allowance was modified by a settlement dated 3.12.1974 between the Company and its employees and at present dearness allowance is being paid to the hourly rated and service staff employees according to terms of the said settlement."

"4. The Sabha agrees and accepts the settlement dated 31.12.1974 entered between the company and its employees which was registered in accordance with provisions of the U. P. Industrial Disputes Act, 1947 and this acceptance shall be deemed to have been given by the Sabha as its own and on behalf of its members on 1.1.1975 when the said settlement came into force.

That the Sabha agrees and undertakes to withdraw, as a gesture of goodwill and response to the company offering satisfactory terms of settlement as provided hereinabove Adjudication Case No. 6/1976 pending before the Industrial Tribunal Vth at Meerut by moving an application inter alia stating therein that now they have no difference of dispute with the company in respect of the subject matter covered by the aforesaid adjudication case."

Pursuant to the acceptance of the settlement dated 31.12.1974 referred to in Clause 4, the Sabha undertakes that all the applicants who have filed application u/s 33C(2) of the Industrial Disputes Act, 1947 before Labour Court. Meerut claiming dearness allowance at the rate applicable prior to 1.1.1975 will withdraw their applications since they were all members of the Sabha at the relevant time."

These settlement were registered u/s 6B of the U.P. Industrial Disputes Act by the Registering Authority.

The counsel for the petitioner submits that the ceiling imposed on dearness allowance by the settlement dated 31.12.1974 remained in force only upto 3.1.1977, i.e., when the settlement dated 5.12.1977 came into force. It is further submitted that even after settlement dated 5.12,1977 subsequent settlements were entered into between the parties and the dearness allowance was revised from time to time as per the terms of the respective settlements and they were relied upon by both parties. In compliance with Clause 14 of the settlement dated 5.12.1977 all the workmen except one Sri Bidani withdrew the applications u/s 33C(2) of the Industrial Disputes Act, 1947 which were filed before the labour court. It is urged that the subsequent settlements also reiterated that the terms of the settlement dated 31.12.1974 would be final and binding on the Sabha and it would not raise any dispute with respect to the same and that in fact the settlement dated 3.5.1991 specifically mentioned that Hindustan Lever Mazdoor Sabha would pray for a no dispute award with regard to the dearness allowance.

Sri Sudhir Chandra learned senior advocate further submits that the validity of the settlements dated 31.12.1974 and 5.12.1977 as well as Voluntary Separation Scheme in pursuance of settlement dated 31.12.1974 were questioned in Adjudication Case No. 75/81 which were referred to the Tribunal. Adjudication Case No. 87/81 was taken as a leading case. The labour court by the interim award dated 17.9.1981 held that the settlements dated 31.12.1974 and 5.12.1977 was fair and proper and there was no collusion, fraud or misrepresentation in entering into the aforesaid settlements. Thereafter the matter was transferred to the Industrial Tribunal, U. P., Kanpur who upheld the interim award vide order dated 30.10.1998 but the termination of services brought about under the Voluntary Separation Scheme was held to be illegal.

Aggrieved by the award dated 30.10.1998 the petitioner preferred Writ Petition No. 15533 of 1999 before this Court. Vide judgment and order dated 17.4.2000 this Court upheld the finding recorded by the Industrial Tribunal, Meerut in its interim award was correct and that the final award by the Industrial Tribunal, U.P., Kanpur was illegal.

Thereafter, according to petitioner the establishment at Ghaziabad was closed in 2000 as all the workmen opted for V.R.S. The petitioner thereafter filed application before the Industrial Tribunal that no industrial dispute survives and the reference be answered accordingly but the Industrial Tribunal by order dated 8.8.2003 directed to proceed with the case and directed the parties to lead evidence on merits, hence Writ Petition No. 31129 of 2003 has been filed. During the pendency of the above writ petition the Union raised a dispute that payment of dearness allowance according to settlements dated 31.12.1974 and 6.12.1977 was illegal and workers are entitled for dearness allowance at the same rate was being paid to them before 1.1.1975 without any deduction.

It appears from the records that the workers through Hindustan Lever Mazdoor Sabha, hereinafter called as Sabha through one R.P. Bidani Chairman raised dispute about imposition of ceiling on dearness allowance from 1.1.1975 which was registered as C.B. Case No. 11 (Ca)/75 for adjudication which was rejected. Sri Bidani filed Writ Petition No. 24313 of 1980 on behalf of Hindustan Lever Mazdoor Sabha praying for issuance of a writ in the nature of mandamus commanding the State Government to exercise its power u/s 4Ka of the U. P. Industrial Disputes Act and refer the matter in dispute arising out of the "imposition of celling on dearness allowance payable to the workmen". During the pendency of the writ petition an application on behalf of the Hindustan Lever Mazdoor Sabha, Ghaziabad Centre through its Chairman Pradhuman Kumar Sharma was preferred on 18.9.1991 for withdrawal of the writ petition on the ground that a settlement has been arrived at on 3.5.1991 as such have existed no dispute between the petitioner and the respondent No. 4 in respect of the matter raised before the Conciliation Officer in C.B. Case No. 11 (Ga)/75. The writ petition was disposed of by this Court vide judgment and order dated 30th July, 1998 which is as under :

"I am of the view that neither the State Government nor this Court can adjudicate upon the question as to whether the dispute was appropriate or inappropriate, proper or improper, expedient or inexpedient. That question can be determined only by the Labour Court/Tribunal.

In view of what has been indicated hereinabove, the writ petition succeeds and is allowed. A writ in the nature of mandamus commanding the State Government is issued to refer the matter in dispute pertaining to imposition of ceiling on dearness allowance payable to the workmen as raised vide C.B. Case No. 11 (Ga)/75 for adjudication to the Labour Court/Tribunal u/s 4Ka of the U. P. Industrial Disputes Act within a period of three months from the date of receipt of a certified copy of this order.

However, in the facts and circumstances of the case there shall be no order as to costs.

Sd. Hon. S.H.A. Raza, J."

In compliance of above order State Government referred the following Industrial Dispute vide reference order dated 25.9.1998 :

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The petitioner moved an application to declare that no dispute survives between the parties in view of the settlements and requested the Tribunal to answer the reference accordingly,

It is contended by the learned counsel for the petitioner that the order of reference with regard to the validity of freezing of dearness allowance is covered by the settlements aforesaid and concluded by the aforesaid judgment of this Court dated 17.4.2000 which have become final hence, the question with regard to the freezing of dearness allowance after 1.1.1975 does not survive and has ceased to be an industrial dispute. He further contends that in fact the dispute contemplated in the said reference has been given complete quietus by the judgment and order dated 17.4.2000 of this Court and as such the adjudication proceedings are utterly futile. The dispute at best related to the dearness allowance for the period from 1.1.1975 till the effective date of settlement dated 5.12.1977 when the earlier settlement dated 31.12.1974 was ratified and the dearness allowance was revised. It is urged that the dearness allowance has also been subsequently revised from time to time by settlements as stated above and that on introduction of new Voluntary Retirement Scheme in 1999 and 2000 all the workmen of the Ghaziabad undertaking of the Company have accepted the V.R.S. and have received their full and final benefits and the Ghaziabad undertaking has since been closed, there remains no dispute. The labour court by the impugned order dated 8.8.2003 has illegally held that the evidence is required to be led in the case. The operative portion of the impugned order is as under :

"Question which has to be examined in this case is as to whether the settlement dated 31.12.1974 is binding on the workmen or not. The parties have filed pleadings and documents. They have not yet adduced evidence. To decide this complex question of fact and law it appears necessary that parties be permitted to lead evidence and to prove the documents filed by them. At this stage, no opinion can be expressed on the referred question without permitting the parties to lead evidence and to prove the documents.

List on 5.9.2003 for issues."

Reliance has been placed by Sri Sudhir Chandra, senior advocate on the following decisions of the Hon''ble Apex Court :

(1) Sirsilk v. State of Andhra Pradesh 1963 (II) LLJ. 110 ;

(2) K.C.P. Limited Vs. Presiding Officer and Others, ;

(3) Blue Star Limited Vs. K.S. Khurana and Others, ;

(4) The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Others,

(5) Indian Iron and Steel Co. Ltd. v. Prahlad Singh, 2001 SCC (L & S) 239 ; and

(6) The Management of Express Newspapers Ltd. Vs. Workers and Staff Employed under it and Others,

Sri. K.P. Agarwal, senior advocate appearing for the respondents submits that the petitioner has come against an interim award and the proceedings before the labour court have been stayed by this Court vide order dated 17.11.2003 which is an interim order and writ petition is not maintainable. He further submits that once this Court vide judgment and order dated 30th July, 1998 directed that the reference was to be made it was incumbent upon the labour court to have answered the reference.

In para 8 of the affidavit filed in support of the application dated 14.5.2002 (Annexure-13). the employer has stated that in 1999 and 2000 V. R. S. were introduced which have been accepted by all the workers and they have received their benefits in full and finally and there is not a single workman employed in the Ghaziabad undertaking.

A reply to this application was filed on 14.5.2002 (Annexure-14 to the writ petition) by Sabha through Bidani. In para 22 reply to para 8 has been given. The allegations have been denied in general terms. It is stated that allegations in para 8 have been made to create controversy which is extraneous to the reference. There is no specific denial of opting V.R.S. by all the workmen and closure of the undertaking from 1999 to 2000. Since there is no specific denial, the acceptance of V.R.S. by all workmen can be taken to be correct as provided in Order VIII, Rule 5, C.P.C. By opting V.R.S. and accepting the benefits the employees give up all previous rights and no claim of any kind is maintainable thereafter. The Apex Court in case of A.K. Bindal and Another Vs. Union of India (UOI) and Others, in para 34 has taken the same view. It runs as follows :

"This shows that a considerable amount is to be paid to an employee ex-gratia besides the terminal benefits in case he opts for voluntary retirement under the scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and foregoing all his claims or rights in the same. It is package deal of give and take. That is why in the business world it is known as "golden handshake". The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrate."

In view of the above, it is needless to go into the other questions raised in the case. The matter is now stale which was subject matter of adjudication earlier by Industrial Tribunal and High Court. I am of the view that it is wholly inexpedient to allow the proceedings to drag on now in changed circumstances. The dispute about rate of dearness allowance is 30 years old. The undertaking is lying closed for about 5 years and there is no workmen in employment. The Sabha has lost character of representative of the workmen of the unit. There is neither undertaking nor workmen, hence there can be no industrial dispute. The Tribunal has not applied its mind to this aspect at all.

The writ petition is allowed and order dated 8.8.2003 is quashed. The Tribunal is directed to pass order on application of employees dated 14.4.2002 in the light of observations made in this order within 2 months from the date of production of a certified copy of this order. No order as to costs.